The Constitution Is Not Anti-Abortion (or Pro-Abortion)

In an interview with Piers Morgan, Justice Antonin Scalia stated, “Regardless of what my views as a Catholic are, the Constitution says nothing about it . . . the Constitution, in fact, says nothing at all about the subject” of abortion.

Scalia continued, “Just as the pro-choice people say the Constitution prohibits the banning of abortion, so also the pro-life people say . . . that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law. I reject that argument just as I reject the other one. It is left to democratic choice.”

I would add to this that the Constitution doesn’t say anything about murder, rape, incest, or theft. I do not agree that issues like abortion — or murder and rape — should be left to “democratic choice.”

In the Empire Strikes Back, “Episode V,” in the six-part Star Wars saga, viewers are introduced to the Cloud City of Bespin and its ruler, Lando Calrissian. Cloud City was a man-made satellite community that hovered in the midst of valuable gas reserves that were mined. The image of a city floating in the midst of clouds reminds me of the United States Constitution. Without acknowledging an outside authority — a higher law — as the source of right and wrong, the document hangs among the clouds of shifting ethical winds.

This image was made real to me when in 1993 when I read reports of attempts to sanction homosexual marriages in the state of Hawaii based on the premise that a ban on same-sex marriage is “presumed to be unconstitutional.”1 A strict constructionist could make the case that since the Constitution does not define marriage, we, the members of the Court, cannot define it. Of course, the Constitution does not define what constitutes rape, incest, murder, or theft. Does this mean that it supports moral anarchy, and if it doesn’t, then what were the founders thinking when they left the Constitution adrift without a moral foundation?

They spoke a great deal about morality. For example, John Adams said the following in a speech to the military in 1798:

“Because we have no government, armed with power, capable of contending with human passions, unbridled by morality and religion. Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. Oaths in this country are as yet universally considered as sacred obligations.” ((Letter to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts (October 11, 1798) in Revolutionary Services and Civil Life of General William Hull (New York, 1848), 265–266.

There is nothing in the Constitution that defines ethics, the parameters of marriage relationships, or what constitutes a family. The ruling by the Hawaii Supreme Court in 1993 claimed that such definitions reside with the people. In the case of homosexual marriage, they reside with those who want to marry someone of the same sex. Thus, ethical absolutes have no greater authority than “We, the people,” a point that was argued by Patrick Henry in his opposition to the Constitution and its democratic Preamble. The rat he smelled in Philadelphia more than two centuries ago is giving off an even greater stench today.

Our Constitution needs a solid foundation upon which to rest its governing ideals. It has hovered far too long among the clouds of a gaseous democracy co-opted by special interest groups. One day it will run out of the fuel that keeps it afloat (a disintegrating Christian worldview among the people), fall to earth, and crush all those who trust in its ability to maintain flight.

  1. “Hawaii Opens Door to Same-Sex Marriages,” Virginia-Pilot and Ledger-Star (May 7, 1993), A3. []