Brian Buckley is a senior lecturer in philosophy at Santa Clara University. Views are his own.
The United States is a liberal democracy. As such, the laws are the product of structures set up by and rights guaranteed to the people. The separation of powers and checks and balances written into the original 1787 Constitution were ratified by representatives in state conventions explicitly elected to vote on accepting the Constitution. And the Bill of Rights passed with a two-thirds vote in the democratically elected House of Representatives and indirectly elected Senate before being approved by the democratically elected legislatures of three-quarters of the states. Our rights and our government structures are the product of the will of the people, made manifest through elections (albeit imperfectly).
One could strongly argue that it is this democratic source that gives our laws the authority and legitimacy they have. One of the classic questions in philosophy of law concerns legal obligation—that is, why does the law have any legitimate authority over citizens? Does it come through fear of not following laws made from some bully who will enforce them mercilessly? Is it because the laws are the product of God’s will? Is it that the laws proceed from a monarch born into his or her position as sovereign/ruler? I think we would definitely say no. While we might follow the laws out of fear, for example, I don’t think we could plausibly consider such fear to be a source of legitimacy. We might fear the consequences of not following the law, but that would not be a basis for legitimate authority.
Instead, we may look upon the laws as being the result of the democratic processes already mentioned. A person may disagree with a law, for example, but still understand that the statute at issue is the product of a carefully prescribed process (for instance, legislative vote and executive signature) from a constitution initially accepted and later consented to by the people. And that the legislators and executive themselves are elected by the people. These laws are the government of, by, and for the people that Lincoln said that Civil War in part was meant to preserve, what he called the last best hope of earth. Lincoln understood that democratic government was belittled all over the globe and that a war that upheld the right of the people to vote for their government was one worth dying in. This value was repeated with the call in World War I to make the world safe for democracy. And was demonstrated to the world in the courage of those who marched from Selma to Montgomery to fight for their right to vote.
As noted, the right to vote is held by many to be worth dying for. And yet, we have seen since the time of Roe v Wade, subsequently upheld by Casey, an effort by the nine judges of the Supreme Court to take away from the people the right to vote on something that is a deeply held moral belief—their views concerning the moral integrity and inviolability of the human person as a fetus. With Casey, the Court has said that while a fetus is still pre-viable, the right to vote must give way to the right to an abortion. And yet that balance has never been defended by the Court. That is, the Court has never explained why the right to an abortion supersedes the right of the people to vote on abortion. There is nowhere in the Constitution any language addressing abortion, but the 15th and 19th Amendments address the importance of voting by extending it to free black men and to women. In addition, as part of the progressive movement, the right to vote for senators directly was put into place by the 17th Amendment. The 26th Amendment underlines further the right to vote by extending it to 18-year-olds. And the 24th Amendment sought to remedy the injustices regarding African-Americans and the poll taxes that prevented them from voting. It is fair to say that the Constitution has repeatedly addressed the essential nature of voting to this republic. The Constitution, however, says nothing about abortion. Why then should that right overtake in importance the right to vote? The Supreme Court has never said.
Despite popular opinion, our government is NOT immune to the tyranny of the majority in its liberal democratic form of government. Many consider our First Amendment, for example, as meant to disallow the ability to vote on unpopular speech and thus insulate such rights from the whims and caprice of the people. That may be the effect sought, but the process through which that effect is achieved is itself thoroughly democratic. As noted, the 1787 document itself as well as the First Amendment only came to be law via democratic approval. Without democratic approval, there would be no Constitution, no Bill of Rights. That is why courts must proceed carefully in their role of judicial review and their understandings of federalism. When a court overturns a bill or removes the ability of the people to vote on an issue, they are in danger of delegitimizing the law unless they can point with great clarity to those parts of the Constitution that mandate such a decision.
Let us look a little deeper into democracy’s power. Any person may have a particular moral understanding of some important issue. This person may protest and read about and campaign on this issue because she cares about it to the core of her being. This issue is part of her. In defining herself, she might very well say that being concerned about the justice of this deeply held moral belief is elemental to who she is. When she votes, she knows that she has had an opportunity to persuade others such as she who, as her democratic equals, also get to vote. As free and equal people, her vote counts as much as theirs. And when she votes, the act of casting the ballot has a transitive effect. That is, the nature of voting is to convey a person’s particular point of view on a candidate or issue. This would be very easy to do on abortion, where candidates nearly always advertise their position. Voting is thus a vehicle that makes manifest the will of free people. As such, those elected or the legislation approved by referendum, for example, reflect the moral priorities of the people. The form of the law may have legitimacy because it comes from the vote of the people; the content of that law has power because it comes from the beliefs of the people. Indeed, we might rightly ask if people can ever truly be free if their will concerning the overall common good and law is not counted. What kind of civic freedom would anyone have without the vote?
Again, this is what is ignored by Roe and its progeny. And this is why it has never been accepted by whole swaths of the country. It does not reflect their beliefs, and they cannot vote to overturn it. To be clear, in 1973 when Roe overturned dozens and dozens of state legislatures and made abortion a right, it made the only possible recourse for those who oppose abortion to resort to the amendment process or to try to pack the Supreme Court with individuals who will overturn such decisions. Again, to be clear, when the Supreme Court made abortion a right, it made it impossible for the people to vote on it. This is not something that should be done lightly in a democratic republic.
So, if Casey were overturned, one could argue, the moral values and equality of the people would again be the source of law on abortion. However the people of the state wanted to decide the issue of abortion, consistent with the Constitution’s other requirements, would be reflected in their law. Such law would respect the agency of the voter. And if the people of the United States wanted to enshrine abortion as a right in the Constitution (as with the Bill of Rights), the democratically elected representatives in the Congress and in three-quarters of the states would thereby vote on the issue. It would then gain a legitimacy it simply does not have now to a significant percentage of people in the states. To many such people, it is simply odd and unfortunate to celebrate the history of those who have fought hard and died for the right to vote, while at the same time others in the courts work hard to limit their voting choices. Especially when such votes are an agent’s expression of her deeply held moral beliefs.