I am pro-life. I think the Constitution, as interpreted by the Declaration of Independence, recognizes, under most circumstances, a human fetus’s right to life. I don’t think any of the four party candidates for president on today’s ballot share my views, though one recently switched to a pro-life position.
I respect people’s pro-choice stance. Most of them condemn most abortions but don’t think a government should make decisions affecting the mother’s body. Indeed, when I see “Choose Life” license plates, I wonder if the driver is a pro-life person acknowledging the mother’s right to choose or a pro-choice person begging that mothers consider alternatives to abortion. And I know parents – both pro-life and pro-choice parents – who are more noble than I: they have adopted unwanted children.
Many Evangelicals will vote for any major-party presidential candidate who claims to be pro-life. This year, then, many Evangelicals will vote for Donald Trump. Most of them have made their peace with a candidate whose lifestyle is hardly Christian and who recognizes no need for redemption. They have also made their peace with a candidate whom they recognize as being largely outside of the American conservative tradition. Many of these Evangelicals even agree with the conclusion, stated in a letter signed last week by hundreds of American political science professors, that Trump’s candidacy is “a grave threat to American democracy and to other democratic governments around the world.” These Evangelicals are willing to dismiss that threat because Trump claims to be pro-life.
How did we get to the place where many Evangelicals are willing to risk democracy itself in order to vote for someone who claims to be pro-life?
I’ll hazard an answer. We Evangelicals don’t know our political science. We persist in a form of Constitutional exegesis that we would, I trust, never apply to the Bible.
Most Evangelicals are strict constructionists, which is a far cry from favoring the Founders’ original intent. Strict constructionists look at what lawyers call “the four corners of the document” – in this case, the United States Constitution – without any guiding principles except principles resembling those of statutory construction. If strict constructionists don’t find the answer in the Constitution, they put it to a vote.
Robert Bork calls the operation of strict constructionism “majority morality.” Here’s how it works as it moves from Constitutional interpretation to the political sphere:
There is no way to decide these questions [that place moral positions at odds with one another] other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails. (From Bork’s book The Tempting of America)
In our pluralistic society, Bork says, the controlling values are the majority’s. But is it really a majority’s prerogative to decide what’s right? Isn’t this the kind of nihilistic thinking conservatives often attribute to liberals?
Here’s conservative Edward J. Erler‘s response to Bork:
Indeed, Madison, like Jefferson, argued . . . that a majority may do only those things “that could be rightfully done by the unanimous concurrence of the members.” Thus it is not simply the will of the majority that “rightfully” rules in a democracy, but the rational will of the majority. In the same vein, Jefferson wrote that “[i]ndependence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” Thus, it is clear that Madison and Jefferson viewed the people as a moral entity, not simply as a collection of discrete value-positing individuals. The positivism of both Bork and Rehnquist is predicated on a kind of moral relativism that ultimately leads to nihilism. (Edward J. Erler, in his introduction to Harry V. Jaffa’s Storm Over the Constitution, p. xxix)
What, then, makes a strict constructionist a strict constructionist? At bottom, the denial of self-evident truth. Strict constructionists adhere to the letter of the Constitution even in situations when traditional Constitutional construction would lead jurists outside of the text. (John Marshall, for instance, sometimes would argue a Constitutional provision only to reinforce a finding he would make chiefly through natural law.)
Our literalism, however, often obscures or even excludes truth. We are often like the Pharisees, whom Jesus said “pay tithe of mint and anise and cummin, and have omitted the weightier matters of the law, judgment, mercy, and faith” (Matt. 23:23).
What drives strict constructionists to overly fixate on the Constitution’s text? Partly the same literalism with which some Protestants approach the Bible in response to the Enlightenment. Partly their core belief that no one can divine the Constitution’s spirit or distinguish between its ideals and its political compromises. And partly their reaction to the progressives’ Living Constitution doctrine, the notion that the Constitution says what each generation of Americans says it says.
But strict constructionists never meet the Living Constitution adherents’ argument that we can’t know what the Framers meant. Instead, they reinforce the Living Constitution adherents’ argument through their over-insistence on the Constitution’s letter.
We can, though, usually know what the Framers meant. It’s no secret. While a lot of important, fundamental matters divided them — the nature of federalism and the extent of the franchise, for instance – a relatively new philosophy and an older heritage united them: Lockean liberalism and the broader notions of natural law and English common law. These three sources contain the legal equivalent of “justice, mercy, and faith.” Original intent, then, is an open mind informed by a vigorous legal and constitutional tradition. Beside it, Strict constructionism and the Living Constitution appear merely as simplistic rules of statutory and constitutional construction that, as Erler says, promote a “moral relativism that ultimately leads to nihilism.”
We church folks can get this. Long ago, I saw the wisdom of this Christian adage: if you have the Spirit without the Word, you blow up. If you have the Word without the Spirit, you slow up. If you have the Spirit and the Word, you grow up. Taken from biblical exegesis and applied to Constitutional exegesis, this adage in succession describes the Living Constitution, strict constructionism, and true original intent.
How does original intent apply to today’s abortion issue?
We might look at how Lincoln applied original intent to an earlier scourge, slavery. Abolitionist William Lloyd Garrison called the Constitution a pact with the devil and burned it in front of audiences. Lincoln admitted that the Constitution contained horrible compromises benefitting slavery, but he supported it nonetheless. Though Lincoln maintained his “personal wish that all men every where could be free,” he recognized that the Constitution protected the Declaration’s truths concerning equality, life, liberty, and the pursuit of happiness – the very seeds that he hoped would grow to destroy slavery.
Lincoln believed that the Declaration’s truths were protected by the Constitution’s mean compromises, and he described the relationship between the Declaration’s truths and the Constitution’s compromises in a biblical metaphor, quoting this passage from Proverbs: “A word fitly spoken is like apples of gold in pictures of silver.” For Lincoln, the Declaration’s truths are the apples and the Constitution is the picture:
The assertion of that principle [“liberty for all”], at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple – not the apple for the picture.
One must preserve, protect, and defend the picture of silver – the Constitution – not for its own sake but for the golden apples’ sake. The abolitionists sought to keep the apples without the picture. Lincoln’s moderation would preserve both the apples and the picture long enough to amend the picture to become a fuller expression of the apples.
One can imagine a conversation between Lincoln and Garrison that would largely track a famous conversation in the 1960 movie A Man for All Seasons between Thomas More and his son-in-law, William Roper:
Roper: So now you’d give the devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake.
The antebellum South, of course, took an exegetical position opposing Garrison’s. It sought to keep the picture without the apples. That is, it wanted to enforce the letter of the Constitution in order to have fugitive slaves returned and to maintain their advantage in the House of Representatives. Unlike Lincoln (and Jefferson and Madison before him), however, the South didn’t believe that the Declaration’s truths should be used to interpret the Constitution and to thereby limit slavery’s expansion.
Steeped in strict constructionism, the South in its rebellion proved just as willing to destroy the Constitution – the picture of sliver – as Garrison had been. Indeed, strict construction’s literal, truth-starved exegesis always leads to nihilism and to the destruction of the document interpreted.
Our Constitution, at least as our highest court has interpreted it, supports a right to choose. That support is contrary to the truths contained in the Declaration of Independence. We have a situation precisely like the one Lincoln and Garrison sparred over.
We cannot participate in our Constitution’s destruction, either during today’s election or in the dangerous days that follow it, in order to end abortion. The Constitution protects the Declaration’s truths, and those truths protect a fetus’s right to life.
We cannot, in screenwriter Robert Bolt’s terms, “lay flat” our country’s Constitution in order to “get at the devil.” Congress should not shut down the government to defund Planned Parenthood, which receives no government funding for abortion, anyway. The Senate should not shirk its duty to consider President Obama’s or a President Clinton’s Supreme Court nominees. And the people should not rebel against the Union because of an election, as much of the South did in 1860 and 1861. And today we should consider voting for candidates who uphold rather than tear down our Constitutional institutions and traditions.
I am not offering a solution to the abortion issue.
I do suggest, though, that if we hack down our Federal government to go after abortionists, what will be left if we succeed? When the Constitution lies flat and the devil turns on us in the form of anarchy or autocracy – or of one then the other – where will we hide?