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Focus on News, Politics, etc.
by Jim Wrenn, Editor  (January 29, 2000)

Alan Keys-- Right Goal/Wrong Way:
The Creator, the Declaration of Independence and the Constitution regarding liberty, privacy, firearms, abortion.

    Alan Keyes is an obviously brilliant man with a disciplined mind and extraordinary oratorical skills, yet he has a Constitutional, philosophical and psychological blind spot about the relationship between the Declaration of Independence (the second greatest document in all of human history) and the foundation of our government by the United States Constitution (the greatest document in all of human history).  As much as I revere the Declaration of Independence, it is not our "founding document" as he so often describes it.  The success of the Revolution it inspired was followed by the failure of a subsequent document (the Articles of Confederation) to become the founding document for a new nation.  Upon adoption of our Constitution, it, not the Declaration and not the Articles of Confederation, became our sole founding document.
Creator.  Although the Declaration of Independence ascribes the source of the rights asserted in it to the "Creator," the Constitution (including the Bill of Rights appended to it) does not contain any such assertion in identifying with much greater particularity the "rights" of citizens to be deemed guaranteed against governmental infringement.  After appearing in the Declaration of Independence, why did the "Creator" not appear in the Constitution?   Paradoxically, a major part of the overall philosophical foundation for the Declaration plus political reasons for attributing "certain unalienable rights" to the Creator make it reasonably clear why the Constitution did not attribute those rights to the Creator.
     Unalienable Rights.  Despite the Declaration's invocation of the Creator as the source of the "unalienable rights ... [of] life, liberty and the pursuit of happiness," an important part of the philosophical justification for the Revolution articulated in the Declaration was objection to governmental power being used to tax citizens to support religion.  Nevertheless, political reasons warranted the Declaration's attribution of such rights to the Creator:   Apart from England's Magna Carter and the English Parliament's perception of itself, God was the only authority perceived by Europeans to be above a King.  Because the King of England as the head of the Anglican Church was perceived by Englishmen as being subservient to God and virtually all other Europeans considered all monarchs to be subservient to God, it was politically advantageous for the Declaration of Independence to invoke the authority of the Creator as partial justification for the Revolution just as it was politically advantageous for the Declaration to attribute to King George oppression imposed by Parliament.
     Founding Documents.  Once the Revolution succeeded in establishing the will of the people as an authority higher than any government ruling them, the political need to identify the Creator as an authority higher than a king disappeared.  Adoption of the Articles of the Articles of Confederation not only formalized the principle that the people collectively are the ultimate authority over government but also elevated the important principle exemplified by the Magna Carter-- i.e., that the scope and breadth off governmental power be defined in a document comprised of terms specified by those to be governed rather than in pronouncements by an authority purporting to be subservient only to, yet also purporting to speak for, God.   By virtue of the Articles being adopted, they superseded the  Declaration of Independence.  Although the Declaration may well have been what Alan Keyes calls a "founding document," it was the founding document of the Revolution but did not become a "founding document" of the union created by the Articles of Confederation.  Subsequently, the Constitution superseded the Articles and by so doing, the Constitution -- not the Articles-- became the founding document of our nation.  Thus, the Declaration is no more a "founding document" than are the Articles of Confederation.  Instead, both the Declaration and the Articles served as inspiration for the process leading to establishment of the Constitution as our founding document.
    Fear of Theocracy.  Why did the authors of the Constitution fail to attribute to the Creator the rights accorded protection by the Constitution?  I think it was because they feared a theocracy as much as they feared a monarchy.  Just as they were unwilling to recognize the authority of a king to purport to speak for God, they didn't want the Constitution to appear to empower the government or any official of it to be entitled to be speaking for God in interpreting the Constitution.
     Source of Unalienable Rights.  Unlike the Declaration, the Constitution does not identify the Creator as the source of any "right" of a citizen.  Instead, it identifies aspects of human activity over which the people (by adopting the Constitution) limited the power of the government to which they were delegating power.  Further unlike the Declaration of Independence, the Constitution guarantees "life, liberty and property" rather than "life, liberty and the pursuit of happiness."  (For an explication of the importance of this difference, click here.)  Although the Constitution certainly guarantees of the freedom to express beliefs such as Alan Keyes' belief that "all rights come from our Creator," it does not express any such belief as did the Declaration of Independence.
Person.  Incorrectly characterizing the Declaration of Independence as a "founding document" in order to import the "Creator" into the Constitutional guarantee of "life," Keyes' argument attempts to superimpose a theological interpretation of the Constitution in determining the meaning of "life" in the Constitutional provision that "No ... person ... be deprived of life, liberty and property without due process of law..."   Not even the most ardent strict-constructionist (which I consider myself to be), nor the most ardent advocate of an original-intent methodology for interpreting the Constitution (such as the indisputably brilliant Robert Bork), can reasonably contend that the Constitutional meaning of "person" includes the unborn.  Therefore, assuming, arguendo, that Keyes' belief that an unborn being is a "person" is theologically correct, it's simply not constitutionally correct.
Liberty, Self-Defense, Due Process.  Apart from the moral/theological issue, if the government were to force a pregnant woman (i.e., an adult) [1] to continue a pregnancy against her will, then such action would be to deprive that woman of her "liberty" without "due process of law" unless it were to be morally and constitutionally acceptable for government to enact a law asserting that there could never exist any set of circumstances warranting deliberate termination of a pregnancy.  As any Second Amendment advocate will readily explain, the rights of self-defense and self-protection are fundamental rights-- i.e., essential components of "liberty" as is the right to control oneself.  (I never agreed with the tenuous "privacy" theory in Roe v. Wade --I think the applicable "right" is "liberty" and that Roe reached a constitutionally correct conclusion but on the wrong constitutional theory.)  
Moral Absolutism, Relativism, Judgmentalism and Justice.  Even under criminal law, it's not a criminal offense for one to kill a person reasonably believed by oneself to pose a threat of death or serious bodily injury to oneself even if such person were to be morally innocent of criminal intent (i.e., insane) and even if one were know such person to thus be morally innocent.   Despite, or perhaps due to, advances in modern medicine, pregnancy poses a greater danger to the life and health of a woman than does an abortion performed by a competent professional.  Thus, even if it were to be assumed, arguendo, that the unborn being were to be deemed a "person," it would be an unconstitutional deprivation of the pregnant woman's liberty if the government were to deprive her of her rights of self-defense and self-protection by forcing her to continue the pregnancy to term.  Furthermore, the undisputed moral innocence of a the unborn being is irrelevant for the same reason that the moral innocence of an insane assailant (in the preceding example) would be irrelevant.
Compulsory Heroism.  The Constitution simply does not empower the government to force one person to risk his or her life for another.  The only context in which the Constitution impliedly empowers the government to force one person to risk his life is the power of the draft inferred from the constitutional grant of power to Congress to "raise an army" to protect the security of the nation.  Even though the military honors a soldier who heroically risks, or sacrifices, his life merely to save another soldier, even the military doesn't criminalize a soldier's refusal to do so even though the military can, and does, criminalize a soldier's refusal to risk his life to accomplish a legitimate military mission.  Thus, even in the military, our society does not attempt to criminalize one individual's refusal to risk or sacrifice his life solely to save the life of another individual.
     End Game, Strategy and Tactics.  Those who want government to ban abortion under all (or most) circumstances could more effectively reduce the number of abortions by appealing to the noble instinct of motherhood rather than trying to use the coercive power of government to ban abortions.  Unlike feminists, who consider motherhood a curse imposed upon women by an unkind evolutionary process, I think motherhood is among the most, if not the most, noble and heroic of human endeavors.  Any man who's had the good fortune to be with his wife to witness the birth of his child understands this and quickly learns that women certainly are not the "weaker" sex.  (That's when any father in his right mind while witnessing such event is saying to himself, "Thank God I'm a man.")  However, I believe the Constitution prohibits the government from enforcing the theological belief, sincerely held by many, that the new, living being unquestionably created at the moment of conception constitutes a "person" from that moment forward.
    Uniqueness of Personhood.  A unique DNA combination will, under proper circumstances, become a person, but the mere formation of such unique DNA combination does not constitute a person until it creates a brain capable of human self-awareness.  If we were to somehow retrieve Jefferson's DNA and stimulate it into becoming a full-grown replica of Jefferson's physical body, it would not be Jefferson.  It's the unique physical structure of a particular human's brain, the instincts programmed into it by DNA and that particular brain's interaction with its environment that creates a unique "person."   A being with nothing more than a brain-stem and a rudimentary nervous system providing nothing more than reflexive responses to environmental stimuli is not a "person."   We use the cessation of a person's brain-function as an acceptable indicator of death even when such person's body remains alive.  It's just as valid to use the emergence of the capability of self-consciousness as an acceptable indicator of the beginning of "personhood."  Although Roe articulated what I believe to be an invalid (and unnecessary) privacy theory to recognize a "right to choose,"  other aspects of its reasoning represented a conscientious effort to recognize that in the later stage of pregnancy, the unborn being should be entitled to treatment as a "person" under some circumstances.
    Absolutism versus Judgmentalism.  Like the "absolutist" anti-abortion position, the "absolutist" pro-choice position is flawed.  Pro-choice absolutists fail to recognize that the decision on whether a pregnant minor should have an abortion should be left to the family absent compelling circumstances warranting governmental intervention.  Furthermore, they equate an adult woman's "right" to give herself an abortion with the privilege extended by the government licensing of health-care providers to provide medical care to others.  Medical ethics and simple concepts of morality and decency impose upon any such professional an obligation to present all aspects of the pros and cons about such a choice.  Any good medical professional would discourage any pregnant female (an adult as well as a minor) from lightly deciding to have an abortion-- If she were to make such decision without carefully considering all the ramifications, she might well experience intense agony and grief the rest of her life each time she reaches a date that would be an anniversary of the event.  She might later become unable to have children and then regret such decision.
Regulatable Privileges.  By virtue of the government's authority to regulate the professional conduct of those it licenses to provide medical care to others, it certainly has the authority to enforce minimum standards of ethics for the provision of such services.  Government imposes such standards on doctors, lawyers, engineers, architects, etc.  Therefore, the absolutist pro-choice advocates are wrong in opposing governmental imposition of ethical duties such as a duty to furnish sufficient information to enable the pregnant woman to make an informed decision.  To impose such informed-consent requirements for abortion procedures is no more offensive to a patient's freedom than informed-consent requirements routinely applied to decisions for virtually every other type of medical treatment.  For example, reasonable people could disagree over whether a 24-hour waiting period would be necessary for a decision to be deemed an informed one.  I would assume that absent compelling circumstances, any decent doctor would almost certainly insist that a pregnant patient "think it over" for a day or two.
    Regulatory Wisdom.  Years ago, I urgently needed back surgery.  The intense pain made me eager to have surgery as soon as possible.  My surgeon urged me to take several days to think it over, which I reluctantly did.  I chose to undergo the surgery, and fortunately for me, things went well.  However, if they were to have gone badly, the fact that my surgeon cared enough to explain the "downside" risks of surgery and persuade me to think about it made it much more likely that I would have been able to accept a bad result without anger, bitterness or regret.  I didn't initially want his "think it over" advice, but I needed it.  A pregnant woman may not "want" any "think it over" advice from a doctor, but a good doctor would give such advice anyway.
    Preachers versus Teachers.  I admire and respect Alan Keyes.  The power of the moral persuasiveness of his oratory is so great that if he were to limit his "campaign" against abortion to his moral persuasiveness, he could easily become President (in a future campaign if not this one) and become one of the greatest spokesmen for freedom in history.  I wish he could overcome his blind spot to the counter-productive effect of his moral zealotry on the abortion issue.  He would change more minds rather than just simply reinforcing the beliefs of those who already agree with him while alienating and frightening who don't share his theological views.

Footnote 1:  With respect to a pregnant minor, a parent has inherent authority to control a child's behavior in many areas which have traditionally been, and must continue to be, beyond the reach of government in a free society; therefore, I favor laws prohibiting the government from providing an abortion to a pregnant minor without parental consent (subject to exceptions based only on a showing of extraordinary, compelling and overwhelming circumstances warranting intervention by a judge). (Back to text.)

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