Report from Massachusetts

A dispatch from the People’s Republic of Amherst, Massachusetts, a place in America, but not quite of it. I am back from Washington, for about ten days, to do some work on the house and baby-sit our furnace, which is trying to make it through the winter. But as it turns out, I am here in time to vote in the election to the Senate, a race that has now taken on a national and even cosmic significance.

For a Democrat to lose this seat, held by Ted Kennedy, is something that could be explained only by a wave of resistance now to President Obama and his Democratic majorities in Congress, as they pursue their works: namely, to take over medical care as a nationalized industry, ram the bill through by buying off the insurance and pharmaceutical companies, and giving bribes, massive and unconcealed, to the unions and the senators pretending to waver. And yet, Martha Coakley, attorney general of the state, and the Democratic candidate, seems to be at very threshold of defeat. Her opponent, Scott Brown, is a state senator who was running behind her by thirty points in polls about a month ago. But as he crystallized the national issues, and promised to be the forty-first Republican vote against nationalized health care, he has surged. He has now actually taken a small lead in the polls. The question is whether that surge will carry him through, and we will soon know: the election will be taking place on the day this column appears.

From what I’ve seen and heard, in my few days back, that surge has not broken its momentum; but rather, it seems to be building as a victory seems more and more in prospect. My own fear: that if the election turns into a cliff-hanger, we will get a rerun of Bush v. Gore, Al Franken v. Norm Coleman, with the Democrats litigating again, dragging out the process for months. Still, even a near win in Massachusetts could have a profound effect in concentrating the minds of Democrats in the House, who could yet turn away from Obamacare.

I’ve been surprised by accounts of Democrats who have turned against Coakley, and feel no romantic interest in preserving what David Gergen called, so injudiciously, “Ted Kennedy’s seat.” Gergen, the so-called conservative, acting as the so-called moderator for the debate between the candidates, triggered the quick rejoinder that has resonated in the land. Brown said that, with all due respect, that is not Ted Kennedy’s seat but the seat of the people of Massachusetts. The resonance is deepened when we recall that it was not only Ted Kennedy’s seat. It was his brother Jack’s as well, passed on to him – to the astonishment of everyone but his father – when Jack became president. The seat has been “in the family,” so to speak, since John Kennedy defeated the incumbent Henry Cabot Lodge in 1952. What has astonished me is the pouring out now of contempt I had never heard expressed about Ted Kennedy from Democrats. But what comes through in the main is the resentment of a sense of “entitlement” attaching to a seat in the Senate.

The National Organization for Marriage has weighed in because Scott Brown has declared his opposition to same-sex marriage. Massachusetts Citizens for Life has come down firmly on the side of Brown, mainly because Brown, in opposing Obamacare, could help avert this new engine for promoting abortion even more widely in the land, with the levers of the law and public funding. Brown has also stated his opposition to partial-birth abortion and the public funding of abortion.

But he has also taken the path of evasion taken by Obama and some of the pro-life Democrats. He would put the accent on reducing the number of abortions, and in that way he would leave conveniently unchallenged the claim to the “rightness of abortion.” Indeed, he has said that the decision on abortion “should ultimately be made by the woman in consultation with her doctor.” What was even more telling was his remark during the debate that, as a father of daughters, he affirmed his support for Roe v. Wade.

Justice Byron White, one of the dissenters in Roe, said that he could accept Roe v. Wade if the “right” it declared were put on the same plane as the other “rights” that were taken as precedents. And so, the “right to marry” did not mean that the law could not place many plausible restrictions on the freedom to marry. If Roe v. Wade could admit many legitimate restrictions on abortion, it could be scaled back to mean mainly the right to choose abortion when the pregnancy would threaten the life of the mother; a situation exceeding rare these days.

But that is not what Scott Brown meant when he affirmed Roe v. Wade. We have a sober reminder here that people may reach the same judgment in particular cases, but that their judgment may spring from principles strikingly at odds. There should be no illusion that Scott Brown, right now, understands or accepts the moral premises of the pro-life movement. But he is, at this particular moment, a powerful instrument for resisting the surge, and the threatened reach, of the pro-death party in America.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.