Revelation: A Problem for Democracy

Justice Samuel A. Alito recently made news when an undercover reporter caught him on tape saying, “One side or the other is going to win. There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”

No one should be surprised at his comment. Alito made exactly this same argument in the first sentence of Dobbs v. Jackson, the decision that overturned Roe v. Wade. “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” Since the differences between the moral positions are so extreme, the Supreme Court could not decide between them. He threw up his hands, overturned Roe v. Wade, and told the states to do whatever they wanted.

To state the obvious, the function of a judge is to judge, to make decisions, especially in difficult situations. For Alito, “The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’” Adopted in 1868 in the aftermath of the Civil War, the first clause of the Fourteenth Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This first clause of the Fourteenth Amendment has been highly litigated, especially the “equal protection of the laws.” It lay at the heart of Brown v. Board of Education, Roe v. Wade, Bush v. Gore, Reed v. Reed. (See Cornell Law School, Legal Information Institute for an excellent overview of the Fourteenth Amendment.)

To argue that the right to an abortion is categorically different from all other rights protected by the Fourteenth Amendment, Alito makes two moves. First, “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage.” Those defenders characterized “the abortion right” as like similar rights because they identified that right as a woman’s right to bodily integrity, a basic human right.

That is not how Alito understands the right. In his second move he draws a sharp distinction: “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”  

The legal fig leaf for this decision was the Mississippi law that provoked the case. That law declared a fetus at conception a human being, referring to it as “an unborn human being.” It offered no evidence for that claim. The unborn was declared a human being from conception by legislative fiat. While legal sounding, this argument is based solely on religious grounds. Changing the wording from ‘fetal life’ to ‘unborn human being’ is not an argument.

Neither legal, nor medical, nor scientific evidence, but solely religious conviction provided the “evidence” for that legislative fiat. Alito made the question to take a life or save a life, instead of a woman’s right to decide about her own body. He implicitly denies a woman’s right to bodily integrity, effectively enslaving her.

Religious conviction or faith makes compromise difficult. Revelation, knowing the will of God, is absolute. That is why the Constitution of the United States does not mention or invoke God. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” No mention of God. We the People establish the country. God is left out of the picture.

The Enlightenment shaped the formulators of the Constitution. Like most Enlightenment thinkers, they distrusted religion. Their experience of an absolute king, complemented with the claims of absolute religions and the resulting religious wars, fueled their distrust of religion. Dissenters fleeing religious persecution had settled many of the colonies.

The Enlightenment thinkers thought human reason could ferret out truth and free discussion, conversation, and argument formed the base of their process. They constructed a republic of letters. Conversation involves give and take and especially compromise. A claim of absolute truth stops conversation. In a contest of absolutes, one side must win, one must lose.

The US Constitution demotes religion, a seldom noticed fact. The ruler no longer must support and enforce a state religion. No religious test for office is required. Religion and the state go their separate ways.

Alito’s argument is with the Constitution, which he took an oath to uphold. He rejects its Enlightenment values. For him some positions are so absolute that no compromise is possible. One side must win. When conversation ends, so does democracy and autocracy begins.

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