President Trump has nominated Brett Kavanaugh to the United States Supreme Court, and the American political-cultural Left has freaked out. They have freaked out for many reasons, among them that this nomination may mean, at least for a few decades, a retreat from the idea that we have a “living” Constitution. In plain English, this is the noxious idea that the Supreme Court is free to legislate from the bench – or more to the point, is free to amend the Constitution.
If you read the Constitution according to its more or less plain meaning, it is not, and was never intended to be, a “living” thing. Instead, it is a social contract first written in 1787 and amended many times since then. It is not a thing analogous to a vegetable or animal, which develops in a natural way. Rather, it is akin to a building that adds rooms or knocks down walls according to the wishes of the owner of the building.
But the more immediate reason for the freak-out is that the Left fears, indeed it is terrified, that putting the Trump nominee on the Court will sooner or later result in an overturn of the Roe v. Wade ruling of 1973, the notorious ruling that “found” a “right” to abortion in the U.S. Constitution.
Roe was one of the worst rulings in the history of the Supreme Court, in the same league with Dred Scott and Plessy v. Ferguson; and a Court with Kavanaugh on it may well decide to acknowledge this. If Roe is overturned, the question of abortion goes back to the states. Each individual state will be free to permit abortion without restriction, permit it with restrictions, or ban it.
The probable outcome is that hardcore liberal states will permit abortion with few if any restrictions, while hardcore conservative states will ban it with few if any exceptions. Sadly, states with big Catholic populations (e.g., New York, New Jersey, Illinois, Massachusetts, Connecticut, California) will probably retain abortion on demand, while those states that severely restrict abortion will be states in which conservative Protestantism is dominant (e.g., Alabama, Mississippi, South Carolina, Tennessee, Arkansas, Missouri, South Dakota). Utah (Mormon) will, of course, restrict abortion.
If you live in Alabama and you want an abortion, you may have to take a bus to New York and rent a motel room for a few days. When the Democrats once again get control of both houses of Congress plus the White House (something that will eventually happen), the federal government will probably seek to pay for the bus plus the motel for the poor pregnant Alabama girl.
Why does the Left care so much about abortion? Why do they regard it as absolutely horrible that abortion may not continue to be (what it never should have been) a Constitutional right? Is it because they themselves frequently become pregnant in an accidental and undesired way?
No, that doesn’t happen very often. Leftist pro-abortion ideologues are usually intelligent and mature people, and when they have sexual relations and don’t want pregnancy to result they are careful to use contraception. Except for the abortion industry (e.g., Planned Parenthood), which makes money on each abortion, pro-abortion people get no personal gain from abortion. They believe in it as a matter of principle.
They are true believers, and what they believe in isn’t simply abortion. It is something broader and deeper than that; it is a culture of sexual freedom. To maintain that culture, of course, you have to have contraception that is readily available, inexpensive, and effective. But it will never be 100 percent effective, and so you will also need legalized abortion as a backup. Without legal abortion, the culture of sexual freedom will be jeopardized.
Just as the demand for abortion rights is part of a bigger thing – the culture of sexual freedom – so the culture of sexual freedom is itself part of a bigger thing, namely the culture of absolute personal liberty, both sexual and non-sexual. Truly radical leftists believe that the individual person should be free to do whatever he or she wishes – provided the acting person does no obvious harm to others.
They dream of a “state of nature” resembling that of Hobbes except that the lawless persons living in this ideal state will behave in an amiable way. Instead of human life being “solitary, poor, nasty, brutish, and short,” it will be social, prosperous, pleasant, humane, and lengthy.
These truly radical leftists are, of course, almost all atheists, for if God exists – a God who is in some way the author of moral laws – humans will not be truly free (as they understand freedom). To be truly free or morally “autonomous” (to use a word that is favored by leftists), we must be free to “create our own morality.”
There is, then, a leftist worldview (or quasi-religion), which begins with atheism, leads in turn to moral freedom, which in turn leads to sexual freedom, and ultimately to the right to abortion. If Kavanaugh on the Supreme Court threatens a right to abortion, leftists fear that their whole worldview is threatened. No wonder they are freaking out.
Their fear of catastrophe is exaggerated, I believe, though I wish it were not. I wish a Supreme Court justice, simply by reading the Constitution in a “non-living” way, could reverse the campaign to de-Christianize America. But I don’t think this will happen.
To the degree that abortion is no longer legally available, the Left will likely redouble propaganda efforts about using contraception. Kids will be taught this in school (many already are). Public service announcements on TV will remind us. Liberal clergy will tell us that contraception is a Christian duty. Parents who don’t teach this to their children will be looked on as bad parents.
It’s heartening that abortion will finally be restricted for decades. But that’s only the first skirmish in a much larger battle.