A Battle of Philosophies


Published November 8, 2022

WORLD Opinions

Today is election day. One of the noteworthy aspects of this election is that Democrats are pinning many of their hopes on the idea that the Supreme Court’s Dobbs decision reversing Roe v. Wade will prove to be a winning issue for them. They poured millions of dollars into advertising on the issue and tried to drive registration among progressive young women, angry over the loss of their “rights.”

Of course, relatively few voters are motivated by an appeal as blunt as that, reduced to something like: “Vote today so you can abort a baby tomorrow.” Instead, progressives are counting on voters turning out to pull their levers not for a particular bundle of “rights,” but for a vision of history.

Indeed, many of the battles between progressives and conservatives today revolve around the meaning and direction of history, a clash that was on vivid display in the Dobbs decision itself. Every great legal debate represents a battle over history, an attempt to define how much the past continues to bind us and how much we can stretch the fabric of history to meet new needs and answer new questions. The judges who wrote the Dobbs decision were driven by divergent philosophies of history, and the future of the abortion debate going forward will depend in large part on which philosophy wins out.

The Dobbs dissenters—liberal Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—presented the role of history in terms of a dead past competing with a dynamic future. Either we must “read the Fourteenth Amendment just as its ratifiers did” or we must retain the freedom to infuse it with our own fresh meanings. Repeatedly caricaturing the majority’s opinion as one of strict originalism, they sought to conjure up the specter of a 21st century America bound to late-19th century norms, in which women were “consigned to second-class citizenship. In place of such narrow traditionalism, they argued for a dynamic vision of ever-expanding rights.

To judge whether or not a right should be added to the Fourteenth Amendment, the judges suggest, we must merely consult contemporary opinion. As they wrote in their shared dissent, “the expectation of reproductive control is integral to many women’s identity and their place in the Nation.” Accordingly, they argued, abortion must be construed as a constitutional right. By this standard, of course, the list of rights is liable to keep expanding indefinitely—a prospect the liberal judges seem to embrace with relish.

Today is election day. One of the noteworthy aspects of this election is that Democrats are pinning many of their hopes on the idea that the Supreme Court’s Dobbs decision reversing Roe v. Wade will prove to be a winning issue for them. They poured millions of dollars into advertising on the issue and tried to drive registration among progressive young women, angry over the loss of their “rights.”

Of course, relatively few voters are motivated by an appeal as blunt as that, reduced to something like: “Vote today so you can abort a baby tomorrow.” Instead, progressives are counting on voters turning out to pull their levers not for a particular bundle of “rights,” but for a vision of history.

Indeed, many of the battles between progressives and conservatives today revolve around the meaning and direction of history, a clash that was on vivid display in the Dobbs decision itself. Every great legal debate represents a battle over history, an attempt to define how much the past continues to bind us and how much we can stretch the fabric of history to meet new needs and answer new questions. The judges who wrote the Dobbs decision were driven by divergent philosophies of history, and the future of the abortion debate going forward will depend in large part on which philosophy wins out.

The Dobbs dissenters—liberal Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—presented the role of history in terms of a dead past competing with a dynamic future. Either we must “read the Fourteenth Amendment just as its ratifiers did” or we must retain the freedom to infuse it with our own fresh meanings. Repeatedly caricaturing the majority’s opinion as one of strict originalism, they sought to conjure up the specter of a 21st century America bound to late-19th century norms, in which women were “consigned to second-class citizenship. In place of such narrow traditionalism, they argued for a dynamic vision of ever-expanding rights.

To judge whether or not a right should be added to the Fourteenth Amendment, the judges suggest, we must merely consult contemporary opinion. As they wrote in their shared dissent, “the expectation of reproductive control is integral to many women’s identity and their place in the Nation.” Accordingly, they argued, abortion must be construed as a constitutional right. By this standard, of course, the list of rights is liable to keep expanding indefinitely—a prospect the liberal judges seem to embrace with relish.

Brad Littlejohn, Ph.D., is a Fellow in EPPC’s Evangelicals in Civic Life Program, where his work focuses on helping public leaders understand the intellectual and historical foundations of our current breakdown of public trust, social cohesion, and sound governance. His research investigates shifting understandings of the nature of freedom and authority, and how a more full-orbed conception of freedom, rooted in the Christian tradition, can inform policy that respects both the dignity of the individual and the urgency of the common good. He also serves as President of the Davenant Institute.


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