Friday, October 31

The Wrong Questions - A Short "Stanifesto"

Several weeks ago Kate and I were watching Joe Biden being interviewed by Tom Brokaw on Meet the Press. Tom Brokaw inquired of Biden, a practicing Roman Catholic, about the "simple" question of when life begins. Biden's gave, at least to my ears, a perfect answer to a question with no "perfect" answer. He began by saying that as a matter of faith, he accepts and believes the teaching of the Catholic church that life begins at conception. He then acknowledged that there are equally religious people of other faiths who believe differently. He then took the "wrong" question - when does life begin - and transformed it to the "right" question (for a politician, though perhaps not for a minister or a philosopher), which involves the right of a society to impose that view on all of its members. He pointed out that we are a pluralistic society, and at least purport to respect the rights of our citizens to have differing beliefs on matters of this kind.

Brokaw proceeded to again ask the wrong question - asserting that Biden had "voted for abortion rights". Again Biden responded with what for me was the perfect response - that he hadn't voted for abortion rights, he had voted against criminalizing abortion. That he had voted against telling every other American that they had to accept his religiously-based view. You can watch that portion of the interview on youtube.

Biden's answer caused a few things to fall into place for me.

First, I remembered reading Roe v. Wade in law school 32 years ago or so. The majority opinion, written by Harry Blackmun, was and is in my opinion a well-reasoned response to an almost impossibly difficult question, even if we as a society have been arguing about it since 1972. I think many people feel that Roe v. Wade "outlaws" abortion. At least as I read it, the opinion is really a balancing of the interests of the mother and the state. I'm willing to bet that less than 1% of Americans (probably way less) have read the opinion. I went back and reread it and I thought I'd excerpt a few passages. It's a little less lawyerly that most Supreme Court opinions - but it's still a Supreme Court opinion so it doesn't necessarily "flow" like a novel:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. . . .

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

Here's the bottom line of the opinion:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. . .

The various justices used different constitutional analyses in reaching their balance of competing interests. But it set me to thinking about the Bill of Rights. It seems to me that the freedoms enumerated in those ten amendments are the fundamental "point of difference" we have as a country. Our freedoms of speech, religion, due process, assembly. The pluralistic idea that decisions are made after the free exchange of ideas. So we have elected to protect not only the right to salute the flag (easy to protect) but also the right to burn the flag in protest (much harder to protect - but more meaningful in terms of actually protecting the freedom itself). We have chosen constitutionally to protect our citizens from unlawful searches, even if it means that we may leave some criminals who are subjected to unlawful searches unpunished. These are the tradeoffs we have to make in order to protect the freedoms set forth in the Bill of Rights.

At least to me, these constitutional liberties are fundamental safeguards, critically important to what we are (or aspire to be) as a country. Though I'm not a "card carrying member of the ACLU", these are for me the "litmus test" issues.

So when I hear Barack Obama say "when an Arab American family is rounded up without due process, that threatens my civil liberties" I agree wholeheartedly. When I hear of politicians seeking to ban books, I disagree just as wholeheartedly - without regard to what the books say.

On taxes, on health care, even on Iraq, there are for me reasonable grounds for disagreement and we should encourage the free exchange of ideas. That free exchange of ideas is made vital because of the constitutional liberties contained in the Bill of Rights.

There is another side to the principle of pluralism that it seems to me we have lost our way on - the idea of a debate on the issues followed by attempts at solutions which involve compromise. Today politicians who change positions on almost any issue are branded "flip floppers." Rather than encouraging a fresh look at an issue, we discourage it. We are, or at least have been, in an era of politics which reminds me of power football. One party or another trying to ram ideas down the throat of the other. The worry lately has been that if the Democrats get to the point where they have 60 members of the Senate, they will run roughshod over the Republicans. Sadly, that concern appears to me to be legitimate.

Let's hope that all the talk about "reaching across the aisle" is more than just talk. That would be a change to believe in. For lots of reasons (including the way my knee jerks, and my preference for a "wealth spreader" over a "wealth vanisher"), I'll be voting for the Obama/Biden ticket next Tuesday. But for me, the single most important reason is my belief that Obama and Biden are much more interested in protecting our constitutional freedoms than McCain and Palin.