Via Howard Bashman, I see that David J. Garrow has in the newest issue of the The Green Bag, a review of Jack Balkin, et. al.’s, What Roe v. Wade Should Have Said. I have blogged about the book here. Garrow does not much like the book, partly because he thinks the opinions do not improve on Blackmun’s curious opinion, and partly because he thinks the whole lot of them make what he considers to be obvious historical errors. A lot of these alleged errors are counterfactual questions about what various state legislatures would have done in 1973 or 1978 or 1998 if the court had decided Roe in a different way. Garrow offers not much more evidence for his view of the counterfactuals than the authors author for theirs, so I will abstain from that fight. I’m posting this because of a paragraph from Garrow’s review that criticizes Michael Stokes Paulsen’s blasting dissent in the book, and in the process impugns the sincerity of both Paulsen and a large number of strong opponents of abortion. In response to Paulsen’s dissent, Garrow writes:
In his subsequent comments, Paulsen writes that “I know my words will offend many,” but he rightly questions “whether decorum, in the face of evil, is really a virtue.” Roe in his view “constitutionalized private mass murder,” and Paulsen accordingly concludes that “[r]esistance to the Court’s decision is not only legally justified. It is a moral imperative.” … Paulsen’s comments, however, completely but unsurprisingly beg the question of why, if women’s legal access to abortion is indeed “mass murder,” Paulsen is simply authoring academic essays rather than picking up the gun to prevent further wholesale killings. … (T)he overwhelming majority of hard-core abortion opponents, like Paulsen, actually do not believe the literal truth of their sloganeering.
This is, in a word, nonsense.
Paulsen’s dissent was inspired by the work of Robert Cover, primarily Robert Cover’s Justice Accused and “Violence and the Word”, which Paulsen’s cannot cite because they were published too late, but also by Cover’s earlier book review in the Columbia Law Review, calling out judges who failed to obstruct the Vietnam War. Of course, what Cover’s research uncovered was that even judges who believed slavery to be unquestionably in violation of basic principles of justice, natural law, and all the rest, had surprisingly complicated (neither cowardly nor boldly obstructionist) responses to the problems of judicialized slavery in the Fugitive Slave Act, and so on. So it seems strange for Garrow to accuse Paulsen of bad faith without exploring (or even mentioning) the intellectual debt that the project owes. The more general point, which Garrow could not dispute if he gave it a moment’s thought, is that almost all of us almost all of the time do not react to murder (whether conducted wholesale or retail) by picking up guns and taking to the streets to stop it. Perhaps this is because we are collectively lazy, or selfish, or free-riders; perhaps this is because we recognize trumping moral principles of autonomy or humility or self-determination; perhaps this is because there are opportunity costs and we believe that we can do more good by penning provocative scholarship than by learning to operate an assault rifle; perhaps this is because we believe we would be shot in the chest before we could accomplish much of anything. Or to be more concrete: Virtually all of us concede, I hope, that thousands upon thousands of people were murdered in Darfur or Rwanda, but almost none of us, whether we pen academic essays or not, picked up guns and bought plane tickets or tramp steamer tickets to go prevent the murders in Africa. Or anywhere else. Hundreds of people are murdered in Chicago or New York every year, but despite four years in Hyde Park, I never once attempted to obtain an illegal handgun and stalk the streets attempting to blow away violent thugs. So it is hard to imagine why David Garrow assumes the results would be any different in the complicated realm of abortion. For those who (unlike me) believe that abortion is the murder of a human being, a large number of different moral obligations and practical considerations pull in different directions. It is preposterous to say that because people do not respond to abortion by joining an armed mob that they do not think it constitutes mass murder. Almost no academic responds to any mass murder by joining an armed mob. Now one could have a theory of obligation that suggests that armed violence is a mandatory response to mass murder, but it would be a very strange theory of obligation, and there is no reason to suppose that Michael Paulsen or any other anti-abortion advocate has it. And therefore, there is no reason to suppose that Paulsen is being insincere when he says that he believes that legalized abortion consists of mass murder. Garrow is being both uncharitable and sloppy. UPDATE: A dim bell of recollection went off in my head after writing this post, and I recalled that Paulsen actually confronted this problem in his dissent. He was dealing with the question of why people who believed that abortion was murder might fail to even speak out against it (let alone to form an armed mob), but this makes Garrow’s decision to charge hypocrisy without confronting any of Paulsen’s actual analysis even more odd. Paulsen writes:
It is personally hard for me to accept the fact that men and women whom I otherwise respect, and call my friends, embrace constitutionalized mass murder. The temptation is to back off a bit, to pull the punch so as not to breach social etiquette and fracture relationships, perhaps even to adopt a “live and let live” attitude (a phrase sadly ironic in this context) for the sake of some ostensibly larger value of social peace– or acceptability in polite company. Now I have a better sense of how the German people could have allowed Nazism and the Holocaust to occur. Before today’s decision, I had always reacted to the tragic, awful history of World War II with amazement: How could a civilized people have allowed such a thing? How could the German people have tolerated the evisceration of their legitimate governing institutions, and the incubation of evil, for so long? How could they have just looked the other way? Or just gone along? What was the matter with them?! The answer, I fear, is that it is hard to believe, almost impossible to believe, that one’s respected elite peers, people whose intellect and passion one may well admire– one’s friends— are advancing what is almost unqualifiedly evil, even when it is staring you squarely in the face. The cognitive dissonance is almost too much to bear. And so we tend to forbear from saying what we know is true and must be said. Evil marches on, unchecked, because to question it breaks the voncentions of polite society. Thus it is that a civilized society may well display a “screaming silence” in the face of atrocity.
Posted by Will Baude on December 7, 2005 at 03:19 PM
» Blog Round-Up – Thursday, December 8th from SCOTUSblog Here is Positive Liberty on backlash from Kelo. BizzyBlog comments here. Sentencing Law & Policy has posted this follow-up to previous entries on Alito and the death penalty. Berkeley law professor Goodwin Liu recently wrote an LA Times commentary piec… [Read More]
Tracked on Dec 8, 2005 12:19:54 PM
Comments
To answer Dan: yes, people would still consider that a “wrongful death” if not a murder. Which is why almost all proposed laws restricting abortion (except in Nicaragua and El Salvador) allow exceptions if termination is medically necessary to save the pregnant woman’s own life. Two problems, though, for pro-lifers if they allow such exceptions: (1) these very easily get stretched, from “this ectopic pregnancy could be fatal” to “I’ll suicide if I have this child” to eventually shopping around for a sympathetic doctor. And (2) such “moderation” wins pro-lifers no kudos at all from the pro-choice side, who instead seize on such exceptions to say “Aha! You don’t really consider a fetus a person with rights after all! Otherwise you wouldn’t allow exceptions!” Which is pretty shonky reasoning – I consider burglars to be human persons with rights, but I think homeowners should be allowed to kill burglars if necessary in self-defence, but I don’t think this should be stretched into a licence to kill, with impunity, every salesman or Jehovah’s Witness who turns up on your doorstop – but it seems surprisingly widespread.
Generally: two questions. (1) How many law professors consider the death penalty to be state-enforced, racially- and class-biased murder? That many, huh. Okay then: (2) How many law professors ever seize a rifle to go do a John Brown on a Texas state prison? Right. I thought so.
The reason, as Will Baude points out, is that most citizens (and a fortiori lawyers/ law professors) have a strong attachment to the Rule of Law. Not absolute: if the government was banning opposition candidates from its staged elections, and running show trials, so there were no lawful means to change policy, then, and only then, might we consider following Washington, Bonhoeffer, King and Mandela into unlawful (though preferably non-violent) civil disobedience. But in a society where the government can and does lose at the ballot-box and in court, there is no need for unlawful violence, so it loses whatever justification it would otherwise have.
Posted by: Tom R | Dec 12, 2006 6:39:13 PM
Is it possible for people to think murder still has occured if the abortion didn’t take place, and the mother died having the baby. I feel that if this happened that people would think so.
Posted by: Dan Hayes | May 28, 2006 8:20:19 AM
Joe:
You miss the point. I don’t mean to say that all people act toward what the believe to be the murder of fetuses the same way that Rwandans acted toward the murder of their families. Of course not. (So that answers all of your above questions– the two situations aren’t analogous, but nobody claims they are.)
My claim, to reiterate for the umpteenth time, is that the screaming silence of the German people during the Holocaust, the American people during Darfur or Rwanda or your choice of remote genocide, etc.,– my claim is that all of these things provide good reason to believe that intelligent human beings are perfectly capable of thinking that a practice is murdererous, but nonetheless deciding on balance to do nothing or very little about it.
As Jeff Rosen says in the same book, it is unfair to grade the moral intuitions of American people as if this were an exam in first-semester ethics or a game of logical “gotcha”. People have complicated and conflicting moral intuitions that they do their best to make good on, all things considered. To suggest that inaction, laziness, or ambivalence imply moral bad faith is to make a startling and unfair leap.
Posted by: Will Baude | Mar 17, 2006 1:16:47 AM
“As I understand it, a large number of the people who believe abortion is murder indeed want abortion doctors to be stopped from performing abortions, by threat of violent force if necessary. Of course, they don’t get their way, but that proves what exactly?”
Not in comparison to what people are willing to do in Rwanda, especially in respect to the people already on the ground. No “large number” are willing to agree to the killing of the doctors. This is a lot different from “violent force” whatever that means.
You didn’t really answer my question, which is quite telling. As to your claims of pragmatism or whatever, the LAW in Rwanda under the Hutsi control was to kill the Tutsis. Again, where are all these people who are saying that the Tutsis should just let themselves and their families be killed? CF. this to the abortion context where rather few are willing even to let family members kill abortion doctors about to ‘murder’ their relatives.
Again, Garrow is right to question the “mass murder” metaphor. Are we supposed to believe if concentration camps suddenly began in this country, death camps, this same non-action would be justified? No.
It’s overwrought language. It cheapens the force of their passion, which is that this is murder of some sort … just not the kind where even saving ONE life would warrant a lot more than accepted even by strongly pro-life groups now.
Posted by: Joe | Mar 17, 2006 12:04:57 AM
(T)he anti-abortion movement has virtually universally condemned those who murdered abortion doctors.
The point of my post is that one can think that an activity is murder, but nonetheless think that other concerns, like a belief in the rule of law, even evil and bad law, trumps in at least some circumstances. For much more on this, see generally Robert Cover, Justice Accused.
Now this belief (that the rule of law trumps sometimes) might be wrong but it is obviously sincerely held, and in no way suggests that people are lying or insincere or even confused about the moral status of abortion.
I think you, and most of those who claim to think abortion is murder, are simply failing to make the distinction between murder and a moral wrong.
To be clear, in case it isn’t, I don’t think abortion is murder. (Which I think you recognize, but I wanted to make extra-clear). I just happen to think that those who say abortion is murder probably also think abortion is murder.
But if their behavior is inconsistent with the belief that abortion is murder.
How can you tell? As Wittgenstein would say, what is it you are sure that people would be doing if they thought abortion were murder?
I hope I have shown that people react to what we all agree to be murder in a large number of odd and morally confused ways, so it should hardly be a surprise that when given a practice that is contestedly murder their actions are at least as odd. This doesn’t mean that their beliefs aren’t sincere, it just means that moral systems are complicated, and putting them into practice is even more complicated.
Posted by: Will Baude | Dec 11, 2005 1:09:58 PM
No, Will, that’s not true. As Garrow points out, the anti-abortion movement has virtually universally condemned those who murdered abortion doctors. I think you, and most of those who claim to think abortion is murder, are simply failing to make the distinction between murder and a moral wrong. I do not for a moment doubt that many people think abortion is morally wrong. But if their behavior is inconsistent with the belief that abortion is murder.
Posted by: AF | Dec 10, 2005 3:30:03 PM
So, how many will willingingly let abortion doctors be shot dead before they are about to perform a few abortions? How many want military force to stop them, if necessary to shoot to kill, such people?
As I understand it, a large number of the people who believe abortion is murder indeed want abortion doctors to be stopped from performing abortions, by threat of violent force if necessary. Of course, they don’t get their way, but that proves what exactly?
Posted by: Will Baude | Dec 10, 2005 2:24:55 PM
The comparisons to Rwanda etc. is telling.
If someone was about to kill a Tutsi family, who would blame those who shot the person, preventing the deaths? Many also support sending forces to stop such killing, including military attacks if the genocide backed forces refuse to stop.
So, how many will willingingly let abortion doctors be shot dead before they are about to perform a few abortions? How many want military force to stop them, if necessary to shoot to kill, such people?
The former family member would not be guilty, most clearly. It is clearly justifiable homicide to kill to stop the immediate mass murder of your family or even one member. But, what of the murders of the abortion doctors?
Nonsense? I shoot the claim right back.
Posted by: Joe | Dec 9, 2005 8:17:21 PM
A hypothetical in support of Will: I assert that much of the U.S. conduct in the war on terror, specifically regarding extraordinary renditions and treatment of detainees in both interrogations and generally is morally reprehensible in a way far beyond your everyday moral failing and quite arguably illegal under U.S. law. Does the fact that I’m currently studying for my Federal Income Tax final rather than engaging in an armed rebellion against the United States cause you to doubt the sincerity of my beliefs? If not, how is that any different except that the activity I’m enraged by is conducted on a smaller scale? If this does cause you to doubt the sincerity of my beliefs, I would suggest that you also doubt whether or not anyone has moral beliefs, at all.
Posted by: washerdreyer | Dec 8, 2005 9:02:16 PM
How does Will Baude have time to blog so prolifically while attending classes as a fulltime law student? And how does he know so much? I suspect he’s actually a retired, gray-haired federal judge. Come clean, Mr. “Baude”.
Posted by: mz | Dec 8, 2005 8:07:34 PM
So Re: the legal/moral divide, Paulsen actually deals with that earlier in the opinion, devoting two sections to a historical exegesis of the original meaning of the 14th Amendment, and so on. And remember that the opinion is fictionally written at a time when abortion is criminal almost everywhere, and has been for a century.
Posted by: Will Baude | Dec 8, 2005 3:43:46 PM
isn’t the real shocker lawyers and law students who don’t distinguish between the personal belief that abortion legally should be murder and it’s legally being murder? prof paulsen may be correct that no civility is due those who promote or condone murder, but the facts that a US majority apparently doesn’t believe abortion should be murder and that it currently isn’t murder might warrant some civility vis-a-vis those who don’t agree with his position, which he apparently holds with the certainty more appropriate to a religious belief than a legal position.
BTW, vis-a-vis the issue of whether anti-abortionists who get abortions are hypocrits, I think you’d get further if you carefully define your sets and limit your conclusions. I’m not interested enough to think it through carefully, but I think the statements should be something like:
those who think abortion should be murder, aren’t otherwise murderers, and get abortions are hypocritical on this issue. those who don’t think abortion should be murder, aren’t otherwise murderers, and get abortions aren’t. of course, one may disagree with the implicit definition of hypocritical or not find this “shocking”.
Posted by: ctw | Dec 8, 2005 3:36:49 PM
JAB, as I understand it Ireland repealed the prohibition on travel before they were forced to by the ECHR, but in any case the decision was certainly lurking in the background.
Posted by: Will Baude | Dec 8, 2005 2:08:30 PM
“However, if you think abortion is murder, and still get an abortion, either you are 1)a self-admitted murderer or 2)insincere. You think 1) is more likely then 2)?”
Yes, I do. I am quite baffled why other people do not.
Posted by: Will Baude | Dec 8, 2005 2:07:38 PM
I suspect that most murderers admit that murder is wrong. Human moral failure is a complex thing.
As for Ireland, I believe the ECtHR found their prohibition on not allowing travel for the purposes of obtaining an abortion to violation the European Convention on Human Rights.
Posted by: JAB | Dec 8, 2005 1:26:56 PM
Pro-choice people would say they don’t get more abortions because they 1)want the particular child to be born or 2)aren’t getting pregnant. If I say “I don’t think there’s anything wrong with vacationing in New Haven” and then I don’t vacation there, then is it likely I am insincere? No, it’s possible, but not likely.
However, if you think abortion is murder, and still get an abortion, either you are 1)a self-admitted murderer or 2)insincere. You think 1) is more likely then 2)? You have the occaional pro-life advertisement that “Jane Doe had an abortion and now she’s sad since she realized she was a murderer” entity versus the idea that maybe somebody just espoused the party line or said something without really meaning it, or, being sincere.
Posted by: Marc | Dec 8, 2005 11:51:27 AM
Both folks have abortions, at what we will suppose to be the same rate. So the suggestion is that one of them must be deviating from the abortion rate that they “should” have given their beliefs. But what is that rate? There’s no reason to expect that merely believing that abortion is murder would stop everybody from committing them. People knowingly commit murder all the time. So maybe the problem is that the “abortion isn’t murder” folks actually do think abortion is murder and that’s why they don’t get more abortions. Or maybe both, who knows?
The point is that you can’t just reason from “people get abortions” to “people are insincere” without more.
Posted by: Will Baude | Dec 8, 2005 10:27:02 AM
“The abortion is murder folks” are insincere because they are the ones having the abortions. Is there any other way to read that? What similar argument is there that those pro-choice are insincere?
Posted by: Marc | Dec 8, 2005 10:13:30 AM
Matt: I didn’t mean to be uncharitable on the point about Nazism, or to accuse you of the implausible point. We both agree that “the screaming silence of the German people” stemmed at least in part from things other than fear of physical retribution. Good!
So, yes, yes, of course there might be reasons for people to try to something about some murders but not about others, but why don’t a lot of those reasons apply to the folks who think abortion is murder? There are lots of reasons, good or bad, that influence the choice.
Now back to the number of abortions point. Let us stipulate that people who claim to think “abortion is murder” get abortions at the same rate as people who claim to think “Abortion is not murder”. So two things are possible– one is that people’s convictions about abstract principles, however important, simply have little influence on their actions in desperate situations. The other is that members of at one of the two groups is being insincere.
Even if we stipulate that it is the latter, why assume that the “abortion is murder” folks are the insincere ones rather than the other way round?
Posted by: Will Baude | Dec 8, 2005 9:10:58 AM
I don’t suppose I said that complicity w/ Nazi murder stemmed _entirely_ from fear of Nazi violence (this changing of the goal posts is a bit annoying in some of our exchanges, I must say). So, I’ll not bother with that point. The second one is also, at best, a rather uncharitable reading. Can you think about why, perhaps, people might have different feelings and moral responsibilities to try to do something about some murders (say, ones allowed by their own country, which they can try to change or have an effect on w/o violence or great threat to themselves) as oppose to others (say, done in countries that are far away, which they can have no expectation to change, which would put them in great danger themselves, etc.?) And, can you see why people might have different moral duties to stop killings they can know with fair certainty will happen at a particular place and time (again, w/ little danger to themsevles) as opposed to your idea of going around w/ a gun, an action that might well itself be illegal and w/ good chance to kill people? To present the two as the same is at least a bit weird. But even more so, it doesn’t fit w/ actions people could easily take becuase it’s about _themselves_. As I’d mentioned, people who say they think abortion is murder are not less likely to have abortions than are people who think it is not. But, that would be pretty shocking if they really thought they were murding their children, wouldn’t it? You said no above, but I suppose that’s not really plausible. Isn’t it more likely that infact they do not think they have murdered their child?
Posted by: Matt | Dec 8, 2005 7:33:45 AM
The suggestion that German complicity in Nazism stemmed entirely from a fear that the Nazis would kill the non-Nazi Germans seems quite implausible. But more generally, I don’t get your argument that “the behavior of even most people who claim to think abortion is murder just doesn’t fit w/ their actions”.
Why not? What’s inconsistent about thinking that abortion is murder but also not doing much about it? The undeniable fact about most of us most of the time is that we do nothing about the thousands and thousands of murders that we know are going on every day, at home and abroad.
Posted by: Will Baude | Dec 8, 2005 1:09:29 AM
Well, Paulson’s rhetoric (comparison w/ the holocaust, “an almost unqualified evil”, etc. seems to indicate that _he_ at least thinks abortion is murder in a quite full-blooded sense. If it’s murder at all it also seems to be premediated murder of an innocent, probably meeting a first-degree murder statute. But, the behavior of even most people who claim to think abortion is murder just doesn’t fit w/ their actions. So, either they are confused or hypocrites of the first order. They wouldn’t even have the sort of excues that non-Nazis in Germany had- that they feared for their own lives. But people are very often confused about their own beliefs and the implications of them. So, it seems much more plausible and even charitable to think that they are confused about their beliefs, do not in fact hold the implausible view that abortion is murder, but in fact think that abortion is wrong for other reasons that don’t depend on it being murder. (Again, Dworkin is very good on all of this and I recomend looking at his book.)
Posted by: Matt | Dec 8, 2005 1:00:10 AM
Do you suppose that Ireland (or any civilized country) would allow its citizens to go their, have their kids killed if they found them too inconvenient, and return w/o charge? Of course they would not. Why? Becuase they don’t really think abortion is the same as this. That is, they don’t really think it’s murder.
I don’t see why this follows. No state treats all murders alike, so you can’t point to a subset of hypothetical murders and complain that because abortion is not treated as we imagine the murders in the hypothetical are, therefore the treaters do not regard abortion as murder.
Even if the M.S.Paulsens of the world believe that abortion is murder, things are complicated by the fact that many other people disagree, meaning that the Paulsens sometimes lack the power to put their beliefs into substantive law. Even in countries like Ireland where anti-abortion forces dominate politices, the anti-abortion forces are 1, split on the question of whether abortion is murder or “merely” the slaughter of an innocent and morally valuable life and 2, still subject to review, pressure, and scrutiny by others who disagree.
Suppose that everybody on the planet were to suddenly start claiming with apparent sincerity that abortion is murder. Does anybody doubt for an instant that it would be as criminal to travel to get an abortion as it would be to get an infanticide? I don’t.
So not all murders are treated alike, especially when civilized and reasonable people are deeply divided over whether the act in question is a murder at all.
Posted by: Will Baude | Dec 7, 2005 11:45:31 PM
People who claim to believe that abortion is murder are not particularly less likely to have abortions. That would be pretty shocking if they really believed it to be murder, no?
Is it? I don’t know. I’m not that shocked. And why should this imply that the abortion-is-murder folks are the disingenuous or confused ones rather than the abortion-is-not-murder folks? Or both?
And of course it is quite possible that some people are disingenuous or confused about their beliefs without it being the case that most, or even many are, and that could also produce the statistical similarities.
Posted by: Will Baude | Dec 7, 2005 11:39:11 PM
Will, I don’t know what Paulsen thinks for sure, as I know nothing of the man. But, I think there is in fact quite good reason to think that _many_ people who think abortion is wrong, and claim to think it is murder, in fact are confused about what they believe and do not in fact think it’s murder. This is fairly clear from their actions. For example, people who claim to believe that abortion is murder are not particularly less likely to have abortions. That would be pretty shocking if they really believed it to be murder, no? Or, take the case of Ireland. I’m told that at least a large plurality there claim to believe that abortion is murder. And yet, the also voted to ammend their constitution to allow people seeking abortions to travel to the UK to have them. Those who do so are not prosecuted when they return, of course. Compare that with another possible case- suppose a channel island decides to make money by changing its laws so as to allow the killing of kids up to age 5 there. Do you suppose that Ireland (or any civilized country) would allow its citizens to go their, have their kids killed if they found them too inconvenient, and return w/o charge? Of course they would not. Why? Becuase they don’t really think abortion is the same as this. That is, they don’t really think it’s murder. Other examples abound. This isn’t to say that there are not people who really do think abortion is murder (John Finnis, for example, has said that the only reason just war theories don’t support the killing of abortionist is that there’s not enough assurance of winning, for example. Assumedly he’d support the killing of abortionists otherwise. The recently arrested bomber in the South is another example.) But, even for most people who profess to think abortion is murder there is good reason to think this isn’t so- their actions are so clearly in contradition to it. Again, I don’t know anything about Paulsen’s view, and perhaps he dose in fact hold this unlikely belief. But, I think there’s good reason to think most do not. There is an excellent discussion of the issue in chapter 2 of Ronald Dworkin’s _Life’s Dominion_ which I highly recommend. (I’m much less taken with Dworkin’s positive positions, but this part of the book is, I think, spot on.)
Posted by: Matt | Dec 7, 2005 10:40:51 PM