A Strategy After FOCA

I've written the following even though it mostly sums up and rehashes various points already made by many commentators out there. However, I write it because I have never seen articulated to the degree I'd like it to be (or maybe it's just my failure in looking) the strategy of finding common ground between social conservatives and libertarians. Given that Republicans shortly will no longer be in power in any branch of government, it presumes a return to power sometime in the future. In the meantime, they must work to follow the principles here at the party level until that future arrives...

I've been thinking about abortion for a long time, about how we can best counter it and the various strategies being followed today. We all agree that abortion is bad, it cheapens human life and takes us down the slippery slope. The question how to best combat abortion. On the one hand, there is the option of a federal amendment that would completely criminalize abortion as murder anywhere in the United States. This would take Roe v. Wade totally out of the equation. On the other hand, there is the option of simply seeing Roe v. Wade overturned and have the issue of abortion kicked back to the states for their own legislatures to consider. This has been the most publicized option with Supreme Court nominees coming under the microscope for their views and, in extreme cases like Bork, sent away. I believe that the second option, though coming more and more under attack for being ineffective, is still the best hope for dealing with abortion.

First, it is important to consider why the Supreme Court option is coming under attack. Critics out there point to the fact that even though Republicans have held the presidency six terms to three since Roe v. Wade was decided, the balance of the Supreme Court has never apparently been enough to overturn that decision. This has led to the idea that Republican presidents are not committed to the idea of overturning Roe v. Wade and are merely using the Christian segments of the Republican base to get elected and are then washing their hands of the issue until the next election. Critics point especially to the justices appointed by Bush 41, moderates who have trended more liberal than conservative in their decision making. They also point to Bush 43, who before the outcry over his first choice to replace Sandra Day O'Connor, nominated one of his close confidants who was more a Bush loyalist than a small government jurist with strong credentials.

Some critics who have come to see the Supreme Court option as a red herring point instead to an all encompassing federal constitutional amendment as being the better option. While this avenue bypasses the judicial branch altogether, it does have its own drawbacks. The chief drawback is that the three different procedures for amending the US Constitution given by that document are all quite lengthy or convoluted. One example is the 27th Amendment, which was proposed along with the Bill of Rights, but not ratified itself until 1992. A second one is the Equal Rights Amendment, which despite broad support, has consistently failed. Another drawback is that even if the constitution is appropriately amended, it would still be interpreted by the Supreme Court; if that court should come to be dominated by activist jurists, the amendment would be interpreted into toothlessness.

It all leads back to the Supreme Court and who is sitting on the bench. In order to prevent disillusionment, it is important to temper expectations. An outright majority of small government jurists should not be expected to overturn Roe v. Wade at the drop of a hat. Rather, it should be expected that they would over time and in concert with lower court judges of the same outlook set up a legal framework to counteract the activist bent seen in the federal judiciary over the last few decades. A slow and steady approach has the virtue of not causing a harsh reaction in favor of preserving the status quo. Once the Supreme Court and lower courts of the federal system set in place a rational system that is not going to legislate from the bench and that is going to respect the natural rights of all citizens, the high court can tackle the chief issue itself.

In conclusion, the abortion issue must be argued in a natural law framework. Too often, the pro-life cause is both identified by others and by itself through its religious framework. This is counterproductive for a number of reasons, the chief of which being that people don't like to give up their rights, even if those rights aren't real rights. Unless the paradigm of the argument itself is altered, it is destined to continue to fail. Social conservatives and liberatarians in the United States can make common cause if social conservatives change their language from a biblical one to a natural law one and if libertarians can be shown that rights for their own sake are not rights at all.