Live and Let Live in a Connected World

Watching the Indiana legislature is sort of like driving past a big wreck….hard not to slow down and stare, even when you know you should look away. The debate over a measure intended to close down “clinics” (aka Planned Parenthood) by requiring them to build mini-hospitals and force patients to undergo two trans-vaginal ultrasounds got me thinking more generally about the nature of law in our contemporary society.

I often tell students that the underlying premise of the Bill of Rights is “live and let live.” There was a libertarian philosophy that heavily influenced our approach to government, a respect for the individual right to personal autonomy, best summed up as: people have a right to live their lives as they see fit, so long as they don’t harm the person or property of a non-consenting other, and so long as they are willing to extend an equal right to self-determination to others.

The seeming simplicity of that construct belies the difficulty Americans have had in applying it. The confounding issue is the nature of harm (and sometimes, as in the so-called “abortion wars,” the definition of “person”).

Smoking is a good example. If you are an adult, the government has no business interfering with your choice to engage in a bad habit. When it became known that passive smoke is harmful, however, the government was justified in stepping in with regulations intended to protect non-smokers from the effects of your bad habit. Seat belts are a more dicey proposition; there is an argument that drivers who fail to buckle up sustain more injuries in accidents, thus driving up the insurance premiums for everyone else, but that’s a pretty speculative harm on which to base a fairly substantial intrusion.

The problem is, as a society, we are becoming more and more connected. Increasingly, the actions of one person affect many others, and if those actions threaten some sort of harm, we look to government to intervene. Worse, the Puritans who have always been a part of American culture remain with us, insistent scolds who want government-as-moral-nanny-state, government that both protects us from ourselves and prevents us from sinning (as they define sin).

We may never agree on where to draw the line. Government surely has the right to tell us we can’t rob the local liquor store, and it just as surely has no right to insist that we eat our broccoli, but between those poles lies great conflict.

We need to become much more thoughtful about the nature of the harms that justify government interventions in our lives. I understand the ongoing debates about abortion–those debates spring from very different beliefs about “personhood.” Seat belts, not so much.

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They Just Can’t Help Themselves

Senate Bill 371, currently passing easily through the various stages of the legislative process, requires facilities that dispense abortion-inducing drugs to meet all the structural and operational specifications of facilities that provide surgical abortions. In other words, in order for a clinic to prescribe or supply a pill to induce a very early abortion, its facilities must rival those of a hospital or surgical center.
SB 371 also requires the physician providing such a prescription to provide the patient with materials–colors specified!–oversee ultrasound imaging, and document efforts to have the woman return in two weeks for a follow-up examination and ultrasound.
This bill has nothing to with women’s safety. It has everything to do with limiting the availability of safe and legal abortion.  As a side effect, it also limits the availability of all reproductive health care for low-income women.  Note the language: it applies only to “clinics.” None of the standards in SB 371 apply to private physicians who dispense abortion-inducing drugs.
The restrictions apply only to “clinics”–read, Planned Parenthood– that provide health care at low cost.
Medication abortion is a safe, early-stage procedure.  SB 371 is an unwarranted interference with the doctor-patient relationship, not to mention an unconstitutional effort to deny some women but not others access to reproductive health services by forcing the closure of the clinics that serve them. This measure is yet another salvo in the GOP’s ongoing war on Planned Parenthood. and a woman’s right to make her own moral decisions.
On the other hand, the perennially cash-strapped ACLU can use the legal fees that will be generated when it wins the inevitable legal challenge. So I suppose there is a bright side to everything.
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A Constitutional Ethic

At this point in the semester, my undergraduate class is encountering a concept called “the constitutional ethic.” (The term is an organizing theme of the textbook we are using, written by yours truly and colleague from Minnesota.)

So what do we mean by “constitutional ethic”? How does such an ethic differ from our usual understanding of ethical behaviors–i.e., honesty, truthfulness, adherence to the law? If the constitutional ethic is “over and above” personal ethics, in what way is it more or different? And how can I describe that difference in language that is accessible to undergraduates?

Here’s what I plan to explain to my class:

As we’ve been discussing, the Constitution is the basis of America’s legal system; as it has operated over the years, it has shaped a distinctive value system and legal culture, a framework within which we make policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. (For example, policymakers need to understand not just that we are a government of checks and balances, but why our system was constructed that way.)

At its most basic, adherence to the Constitutional Ethic requires public officials to act in ways that are consistent with these basic systemic structures, and to avoid acting in ways that would undermine them.

Some examples might “flesh out” the concept.

Respect for due process guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence.

Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize GLBT people, or refuse them access to the institutional benefits enjoyed by heterosexual citizens.

Respect for one of our most fundamental rights–the right to vote, to participate equally in our democracy–imposes an ethical obligation to refrain from vote suppression tactics of the sort we saw during the last election.

Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which we disapprove.

It really isn’t complicated. It’s just increasingly rare.

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Hard to Argue with This

You can hardly pick up a newspaper or magazine, or log onto a website these days without encountering an article that advises the Republicans party on ways to address the party’s current dilemma. Some are well-reasoned and thoughtful, many are nothing more than thinly-disguised apologetics. Commentary magazine has recently published one of the better analyses. Among their prescriptions: an admonition to be intellectually honest.

The article made clear that the author agreed with conservative economic approaches. But as it noted, the likelihood of anyone listening to the GOP on these issues “requires changing an image that the GOP is engaged in class warfare on behalf of the upper class. Republicans could begin by becoming visible and persistent critics of corporate welfare: the vast network of subsidies and tax breaks extended by Democratic and Republican administrations alike to wealthy and well-connected corporations. Such benefits undermine free markets and undercut the public’s confidence in American capitalism. They also increase federal spending. The conservative case against this high-level form of the dole is obvious, and so is the appropriate agenda: cutting off the patent cronyism that infects federal policy toward energy, health care, and the automobile and financial-services industries, resulting in a pernicious and corrupting system of interdependency. “Ending corporate welfare as we know it”: For a pro-market party, this should be a rich vein to mine.”

No kidding. The hypocrisy on this issue–defending corporatism while marginalizing the poor and opposing any effort to help them–has been widely mocked. This preference for corporate welfare has made the general public view all GOP economic prescriptions with suspicion.

Perhaps the most penetrating observation in the article, however, was this one:

Republicans need to express and demonstrate a commitment to the common good, a powerful and deeply conservative concept. There is an impression—exaggerated but not wholly without merit—that the GOP is hyper-individualistic. During the Republican convention, for example, we repeatedly heard about the virtues of individual liberty but almost nothing about the importance of community or social solidarity, and of the obligations and attachments we have to each other. Even Republican figures who espouse relatively moderate policy prescriptions often sound like libertarians run amok.

This may be the area where current Republican rhetoric is most out of sync with the culture. America is experiencing a still-nascent but growing return to balance, to a renewed recognition of the importance of community and the common good. “I’ve got mine” is an unattractive motto for a political party at any time, but it is extremely off-putting to people looking for ways to forge a caring polity.

The article makes several other points worth pondering, not the least of which is that the country desperately needs two mature, responsible political parties. And right now, we don’t have them.

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