Democratic morality

National Review, July 18, 1986 by John Neuhaus

DEMOCRATIC MORALITY WITH REFERENCE to the Democratic Party, "democratic morality" may seem oxymoronic. But even there, especially there, we witness moralities in conflict with one another, and with the larger society. The question of democratic morality, however, transcends party rivalries, as Justice Byron White pointed out in his dissent from the June 11 Supreme Court decision striking down Pennsylvania's efforts to regulate abortion.

In that decision Justice Harry Blackmun, who seems determined to go down in history as the champion of a morally imperial judiciary, wrote for the majority. Pennsylvania's attempts to ensure "voluntary and informed consent" to abortion would, he wrote, have a "chilling" effect upon the performance of abortion. Nothing, but absolutely nothing, must be allowed to intervene in the decision made by "the woman and her physician." Never mind that the physician is usually an abortionist adept at selling the lethal services of that industry.

This, at long last, and on the very eve of his retirement, was too much for Chief Justice Burger. Having subscribed to Roe v. Wade (1973) and subsequent abortion decisions, he professed himself shocked by the "astounding rationale" that it is unconstitutional to discourage abortion, "as though abortion is someting to be advocated and encouraged." Thriteen years and twenty million abortions later, Burger now doubts that the Court's majority is really serious about its claimed concern to protect fetal life. Dissenting in the present case, Burger writes that, if the Court's abortion decisions "really mean what they seem to say, I agree we should re-examine Roe." With Justice Scalia coming on board, this probably means support of Roe is now a defensive five against an insurgent four. For pro-life proponents, actuarial tables are of increasing interest.

Justice White recognized from the start the rationale and predictable consequences of Roe. In his dissent in the present case, he reiterates his objections to the "arbitrary" and "fundamentally misguided" reasoning of the majority, which has led to the result that "the Court has done nothing more than impose its own controversial choices of value upon the people." Then comes the key preposition about democratic morality:

Abortion is a hotly contested moral and political issue. Such issues, in our society, are to be resolved by the will of the people, either as expressed through legislation or through the general principles they have already incorporated into the Constitution they have adopted. Roe v. Wade implies that the people have already resolved the debate by weaving into the Constitution the values and principles that answer the issue. I believe it is clear that the people have never--not in 1787, 1791, 1868, or at any time since--done any such thing. I would return the issue to the people by over-ruling Roe v. Wade.

Justice John Paul Stevens, agreeing with the majority, said he has "the highest respect" for White's views, but then argues that the people cannot be trusted. A woman's right to abortion, he declares, is "more important than the will of a transient majority." Now there is a proposition that might be described as astounding. The very transient majority of the Court seems to be arguing that, when the Constitution is not clear, decisions of great moral moment cannot be left to the people to decide through democratic processes but must be imposed by the superior wisdom of the Court. Of course majorities have been wrong, frequently and notoriously. But Justice White is surely right in arguing that the will of the people, as expressed and tempered through republican institutions, is the locus of political sovereignty in this kind of society. It may not be the best of systems, but nobody has authorized the Supreme Court to replace it.

A Higher Court

AND, IN FACT, the will of the majority on abortion has not been all that transient. The relevant survey research over the years shows quite clearly that about 20 per cent of the public favors an absolute ban on abortion, another 50 per cent would allow abortion in extreme and rare circumstances, and less than 20 per cent supports the current practice under Roe v. Wade. To be sure, the highest moral appeal is not an appeal to the people. But it is the people, appealing to whatever moralities they deem to be higher, who have the political authority to determine the ordering of the republic, including the question of who is and who is not entitled to the protection of its laws. Democratic governance is a perilous experiment, as the Founders well knew. That is why they insisted it could only be sustained by what they called republican virtue. Their uneasiness about the virtue of the people is well known. But, as Justice White observes, they did not despair of democratic morality by replacing the judgment of the people with the judgment of a transient majority of an imperial Court.