The Ricochets of Liberalism Print
By Hadley Arkes   
Monday, 28 September 2009

Those vexing hearings over Robert Bork, for his nomination to the Supreme Court, back in 1987, left enduring marks. They set lasting precedents for poisonous attacks on nominees to the Court, and they brought forth, as guardians of the law, senators who had barely survived law school.

During those hearings, I was making several runs by car from Amherst, Massachusetts to Washington, D.C., moving things down to our house in Bethesda for a year of leave. The hearings were virtually non-stop on the radio. And one result is that I still have, lingering in my memory, parts of the hearings that Bork himself has forgotten. In those grim encounters, there was only one moment when I wished I could be propelled out of my car and into the hearing room to sit in Bork’s place and field the question.

It was a moment when Senator Joseph Biden was pursuing a question springing from Griswold v. Connecticut. In that notable case, the Supreme Court had struck down a statute in Connecticut that barred the use and sale of contraceptives. That case was curiously taken to establish a new right of “privacy” – curiously, because it was arguable that a presumption in favor of personal liberty and private judgment was woven deeply into our law. The burden of justification fell to the government whenever it would seek to restrict that freedom in any of its dimensions.

In any case, Senator Biden affected to be incredulous that anyone would find anything remotely problematic in that judgment in the Griswold case. At one moment, Biden asked Bork: Could he really imagine any case in which a legislator, in our own day, could possibly vote for a statute, like the one in Griswold, that actually restricted the access of mature adults to contraceptives?

That’s the moment when I wanted to be in Bork’s seat. For I could imagine myself saying, “Yes, I can Senator and it would be the kind of statute you have already voted for. It would be a statute that allows a regulatory body to ban devices like the Dalkon Shield out of concern for their safety. And then a group of women argue that this device is one they have used quite successfully; that it comes with a reasonable cost – and that they should be the sovereign judges of the risks they wish to take with their own bodies.”

There were, of course, other things that could be said in defense of a statute that would regulate contraceptives even for adults – e. g, measures to bar sales through vending machines, for casual encounters, treating the whole matter as no more serious than the purchase of a candy bar. Biden seemed to reflect a new orthodoxy taking hold: that the use of contraceptives was a matter so personal, so private, that virtually no laws could rightly restrict their use.

But that judgment, becoming a slogan, managed to screen out so many of the considerations that made the case more problematic. The liberals were quite content to have the slogan without asking, in a demanding way, about the moral ground of this new “right.” We should not be entirely surprised then in our own day that the liberal position on contraception could be flipped. For now we find liberals arguing, with a moral conviction unabated, that the use of contraceptives should be made compulsory by the law.

At the end of August, The AIDS Healthcare Foundation filed a complaint against sixteen companies showing “unprotected sex” in their pornographic films. Larry Flynt, the legendary publisher of Hustler magazine, spoke the plain truth when he simply observed that “people who enjoy viewing adult films do not want to see people using condoms.” But Michael Weinstein, the president of the foundation, declared, "We will not stop until there is a policy of requiring condoms to be used in porn.”

Complaints have been duly filed with agencies, federal and state, dealing with public health and “occupational” hazards. “Pornography” derives from the Greek, pornographos: writing about prostitutes. Not all that long ago, women who appeared in pornographic films were regarded as indistinguishable from prostitutes, and in a strict sense they still are. The standing of both “professions” would pivot on the same moral judgment: If pornography can be regarded as legitimate entertainment, prostitutes can now be regarded as “sex workers,” as legitimate as any other group claiming standing as “workers.”

With the moral judgment dissolved, “sex workers” come under the same regulations for safety and health that are imposed by the laws on other workers and their “industries.” With a simple moral shift, liberal slogans once taken as principles readily give way. The vaunted rights of “personal autonomy,” the “private control over my own body for my own reasons,” the “full freedom of contraception” – all of that is flipped, without strain, into contraception made compulsory by the order of the law.

The Left still doesn’t get it: Rights simply proclaimed, with no moral ground that explains and entails their rightness, can readily be inverted into their opposites when the occasion arises. The only constant is that the Left will not notice. They will not notice the absence of that moral ground when they install new rights, and they will not notice when they repress the same rights to make the world a better, more liberal place.

 

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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