The Fourteenth Amendment

1. Thanks to Carl and Paul for the thread comments below.

2. My point was, to begin with, that the true meaning of THE FOURTEENTH AMENDMENT in relation to abortion is above the pay grade of a campaign.

3. The idea that THE FOURTEENTH AMENDMENT completes the Constitution by allowing the national government—not only Congress, but the Court—to use the Declaration or engage in a kind of general natural-rights transformation of state law is a sort of polar opposite of the kind of new federalism promoted by some Republican candidates, some TEA PARTIERS, our PORCHER and TRADITIONALIST friends, and so forth. And Ron Paul’s libertarian federalism is incoherent, just as his foreign policy is incoherent for an analogous reason. There’s more than one understanding of the principle of letting people along to do what they want—one points to localism, the other to hyper-individualism or the extreme view of the presumption of liberty.

4. My objection to this kind of transformative view of THE FOURTEENTH AMENDEMENT is that it easily morphs into LAWRENCE v. TEXAS. There the Court says that the single word “liberty” in THE FOURTEENTH AMENDMENT was intended, by the Framers, to be used as a weapon to expand the individual liberties of Americans in every generation.

5. Robby George and others explain that this individualist momentum isn’t meant to decimate “traditional” marriage or create a right to same-sex marriage. But, given Locke’s famous nominalism in THE ESSAY CONCERNING HUMAN UNDERSTANDING (for example), it’s not clear to me why liberty, in his understanding of rights, is not a transformative principle that can be used to take out distinctions based on prejudices that we once thought were natural. The original Constitution protected state law from such Lockeanization through federalism. Does “completing the Constitution” means taking Locke out of that box? Surely it does with respect to race and slavery, but . . .

6. So I’m all for “the right to life,” and I appreciate Robby’s true suggestion that we know better than the Framers (of either the Constitution or the 14th Amendment) why a unborn baby should be regarded as a person with rights. The light of science burns brighter because of what we’ve discovered through the science of embryology. But I know for certain that we shouldn’t think that our Court is therefore authorized to declare all laws allowing abortion unconstitutional. For one thing, the various arguments that distinguish that enlightenment from similar enlightenment when it comes to gay Americans aren’t going to hold up. I’ll have to leave to later what I think can Congress should do, although I certainly agree that Congress should act according to its own understanding of its powers and duties, while only deferring to the Courts in terms of particular cases and not in terms of constitutional interpretation.

7. We can’t help but notice both good and bad effects of our creeping individualism or personalism: Young people, studies show, are more pro-life than their parents, but they’re also less interested in sustaining the legal integrity of “traditional marriage.” In both cases, they think they’re thinking on the basis of the latest understanding of rights.