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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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