The James Wilson Foundation on Natural Rights and the American Founding

“Once More Unto the Breach” — Hadley Arkes

In a response to Ed Whelan’s critique of “On Overturning Roe,” Prof. Arkes insists that the moral argument against Roe is the only logical one for judges who believe in the deep wrong of abortion. The pro-life cause rests on objective moral truths, not on value judgments, and as a result does not require judges (as Whelan claims) “to read their own moral convictions into the Constitution.”

Some excerpts:

“‘Value judgment’ is a term that came into place when people stopped speaking of moral truths. Whether something is regarded as good or bad, right or wrong, depends on how much ‘value’ we impute to them. Lincoln said that the central question of his day was whether the black man ‘is not or is a man’—and Harry Jaffa pointed out that this question of the human standing of the black man cannot be a ‘value judgment.’ It is quite unthinkable that we would put that question in the political arena and invite people to offer their value judgments on how much they value the respect and protection for black people in the law. And yet if that is wholly unthinkable, why should we regard it as any more plausible to invite people to give their ‘value judgments’ on the human standing of the child in the womb, when embryology has long established that the child in the womb has never been—and can never be—anything less than human.

Whelan and I have collaborated in the pro-life cause and I know that he has a principled, moral argument in rejecting abortion. He doesn’t think that abortion might be wrong for me but permissible for others. If it is unjustified to take the life of a small, innocent human being, it would be wrong for anyone, not merely for both of us. But Whelan remarks at different points that it would be wrong for justices ‘to read their own moral convictions into the Constitution’ on the matter of abortion, that judgments should ‘not depend on the justices’ own moral convictions on abortion.’ If Whelan and I share the moral judgment of the deep wrong of abortion, that cannot be a matter merely of ‘our own moral convictions.’ And if judges come to hold the same understanding, it is utterly reductive and false to characterize their judgment as a willful expression only of their ‘own moral convictions.'”

“Whelan is quite right when he says that ‘it is not moral relativism to recognize the reality that these claims to moral truth conflict.’ But it does indeed turn into relativism if one goes on then to conclude that the very presence of moral disagreement marks the absence of any moral truth on the matter….Whelan and I want to put this matter of abortion back into the political arena, but how does it possibly advance the ends of our cause if we send the matter back to the States on the premise that there is no truth to undergird their judgments? Are we inviting them to reason through to the moral truth about the wrongness of abortion? Or are we inviting them merely to play out their ‘value judgments’—the arrangement that Whelan calls ‘cringeworthy’?”

My friend’s discomfort then, I think, is not that he thinks me wrong in rejecting that ‘cringeworthy’ path of argument against Roe. The problem, I fear, is that in bringing out for our friends that quality of the argument, my piece may simply expose the moral vacuity of that argument, the argument that conservatives had been beamishly and serenely signing onto for the past 40 years.

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790