Betwixt the Mirage and Hades: Does Voting Matter

“What difference, at this point, does it make?”

We will elect a new president, a new Congress, and many state and local government officers in less than 10 months. Having actively participated in the political life of our Nation through voting and advocacy for four decades, I am growing less and less sanguine about the prospect that political participation suffices to accomplish positive change.

Frankly, I am strongly tempted, particularly whenever the Republican Congress recedes from the field of battle with the current president as though it were the ninety pound weakling, rather than the other way around, I have that refrain constantly in my head: “What difference, at this point, does it make?”

Among my anarchist friends, the entire electoral enterprise is an exercise in self-delusion and oppression. It is an exercise in self-delusion, as they see it, because the outcome of the process makes no improvement. Oppression, because, after all, why should the choices of some collective group strip those outside the group of rights and liberties.

That latter point explains the near anarchy of many libertarians. My libertarian friends view the binary nature of American electoral processes as a deceptive construct of left-vs-right, deceptive because it ignores the more substantive binary of individual liberty versus statist authority.

For conscientious individuals, elections certainly force larger questions than whether to vote for the candidate who sweats less on camera or the candidate that doesn’t recall or even know the name of the head of the government of Uzbekistan. I have to continually evaluate what 40 years of civic participation has accomplished. Candidly, I am often tempted to conclude that I have pursued a mirage in the Republican Party.

The idea of supporting Democratic Party candidates is beyond admission: that party’s devotion to the unfettered right to abort children in utero prevents me, in conscience, to consider their candidates. With a few notable examples to the contrary, working to elect Republican candidates as a method of accomplishing substantial change has been a fool’s errand.

There are exceptions.

In 1980, I supported the election of John East as North Carolina’s junior senator. He joined the Senate during a Republican ascendancy there. Ronald Reagan, a Republican, took the White House. The Republican ascendancy resulted from the investment of committed grassroots activists. Folks expressed their deep, passionate concern over legalized abortion and other issues by turning off the TV and doing the hard work of political campaigning.

I know.

I was one of those folks. My mother and I got a copy of the voter rolls for Onslow County, North Carolina. We reviewed the county’s election records, including addresses, telephone numbers, and voting histories. All that effort was preparation for our ground campaign, a telephone campaign here in Onslow County. That campaign was educational and motivational in nature. It was designed to produce a reliably pro-life turnout at the polls. John East’s election was an effect of the serious effort of folks like us.

Supporting John East was no mistake.

True to his word, he took Senate responsibility for a legislative approach to overturning Roe versus Wade. In Roe, the Supreme Court legalized abortion on demand in the United States.  Importantly, the Court asserted that it lacked legal competence to answer the question “when does human life begin?” Presumably, the Court offered that description of the limits of its power as justification for its ultimate conclusion that States had wrongly claimed an interest in the life of an unborn child. After all, if the Court could not determine that a child in the womb – at any early stage of development – was human and alive, it could readily dismiss a State’s interest in protecting such lives by law.

Senator East orchestrated the Senate Judiciary Committee’s consideration of the Human Life Bill, Senate Bill 258. The Human Life Bill grew out of Steven Galebach’s analysis of the Roe Court’s disclaimer of competence to decide such questions. Galebach argued that the key question – whether a human child’s life is at stake in abortion – was capable of being answered.

For Galebach, the refrains from pro-abortion advocates – telling Roe’s opponents that the only resort left to them to overturn Roe was the ponderous and difficult task of amending the Constitution – rang hollow. With the Supreme Court’s declared incompetence to answer the question of when human life begins, Galebach proposed that Congress had the competence to examine the issue, that best scientific evidence and medical evidence proved that a unique human being came into existence, was alive, at conception. From such a conclusion, made by Congress fully within the bounds of its legislative competence, Galebach envisioned that a legal challenge would bring the matter back to the Supreme Court. In such a case, Galebach postulated that the Court would defer to the legislative fact-finding by Congress.

Senator East’s proposal, Senate Bill 258, embodied Galebach’s ideas.

Of course, Senators and Congressmen do not necessarily possess special knowledge or training positioning them to resolve questions addressed by Biology and the medical sciences. So the Senate Judiciary committee, to which Senate Bill 258 was assigned, scheduled legislative hearings to assemble and assess the science on these questions.

If you did not live through the time, the high drama, political hijinks, and general shenanigans have been lost to you until now.

As to the biological and medical sciences a long a growing body of evidence fully supported a factual conclusion that a distinct, living human entity comes into existence at conception. Building a legislative fact-finding record for that conclusion – from the testimony of recognized experts in human genetics, embryology, and fetology – was simplicity itself. Here are some brief excerpts from testimony submitted to the Senate Committee:

“I have learned from my earliest medical education that human life begins at the time of conception…. I submit that human life is present throughout this entire sequence from conception to adulthood and that any interruption at any point throughout this time constitutes a termination of human life…. I am no more prepared to say that these early stages [of development in the womb] represent an incomplete human being than I would be to say that the child prior to the dramatic effects of puberty…is not a human being. This is human life at every stage.”

Dr. Alfred M. Bongioanni, professor of pediatrics and obstetrics at the University of Pennsylvania. 

“[A]fter fertilization has taken place a new human being has come into being. ... [This] is no longer a matter of taste or opinion, ... not a metaphysical contention, it is plain experimental evidence. ... Each individual has a very neat beginning, at conception.” 

Dr. Jerome LeJeune, professor of genetics at the University of Descartes in Paris. 

“By all the criteria of modern molecular biology, life is present from the moment of conception.”

Professor Hymie Gordon, Mayo Clinic. 

“It is incorrect to say that biological data cannot be decisive…. It is scientifically correct to say that an individual human life begins at conception…. Our laws, one function of which is to help preserve the lives of our people, should be based on accurate scientific data.” 

Professor Micheline Matthews-Roth, Harvard University Medical School. 

“The beginning of a single human life is from a biological point of view a simple and straightforward matter—the beginning is conception. This straightforward biological fact should not be distorted to serve sociological, political, or economic goals.” 

Dr. Watson A. Bowes, University of Colorado Medical School.

Frankly, the entire Nation ought to have fallen under a kind of cognitive dissonance that such clear, undisputed science existed proving the vital humanity of the unborn offspring of human beings while, at the same time, the Nation’s highest Court offered its own incompetence to answer the question at the heart of a State’s asserted interest in the life of an unborn child.

Once the Judiciary Committee unveiled its juggernaut of genetic, medical, and scientific testimony and evidence, an outcry arose from elements in the legal and medical academic communities. The effect of that outcry was to push to recast the essential question raised by the Human Life Bill from a fact-based one answerable by science and medicine to a metaphysical, philosophical one. Doing so successfully would have simply positioned a contentious issue with a fairly obvious answer as an intractable one. In turn, that intractability would secure the status quo: legalized abortion on demand.

A hue and cry erupted with the Senate hearings on Senate Bill 258. The record was held open for the addition of opposition statements. An odd juxtaposition became evident.

Pro Roe v. Wade activists, the kind of folks that invented the chant, “keep your rosaries off my ovaries” insisted that opposition to abortion was rooted in religious belief. Rather than frankly acknowledging the uncontradicted science, they focused their rhetoric on the theological and philosophical questions of life. The worst of that approach came from the situational ethics of Peter Singer. (Notoriously, Singer also argued that no child should be conceded to be alive until a sufficient time had passed after birth to allow screening for genetic anomalies and defects.)

On the opposing side, anti-Roe activists, for many of whom an undeniable religious component compelled their conscientious opposition to abortion, focused their rhetoric on the basic facts of science and medicine. For them, for me, opposition to abortion might embody a precept of religious conscience but was warranted entirely on the genetic and scientific fact that, from conception, each life is distinct from its mother, biologically alive, and genetically human.

Howard Baker, Republican Senator from Tennessee, thrust himself into this maelstrom of contention. While the logical, factual, and rhetorical bases for Senate Bill 258 plainly supported the push for action, Baker brought the effort to a dead stop. Rather than chiding the science-contrarians, Baker turned on the social conservatives. Me and millions of others like me. Baker barked that “social issues” had to be set aside. The “important” issues of the economy have to take precedence in the Senate’s business.

A decade later, no substantial action had come from the Senate on the central constitutional questions related to abortion. What we did get was the confirmation of a checkered lot of judges and Supreme Court justices, including Sandra O’Connor, Anthony Kennedy, and David Souter. The O’Connor – Kennedy – Souter triumvirate joined together in a in a notorious tripartite opinion reaffirming the central holding of Roe that the Constitution guarantees, as an aspect of liberty, a woman’s choice to abort a pregnancy.

In an unfortunate irony, that reaffirmation of Roe came at the same moment that another politician rose to the presidency on the mantra, “it’s the economy, stupid.” Bill Clinton’s catchphrase was that Democrat’s indictment of the failure of the Baker doctrine that deferred treatment of social issues until America’s soft economy was reinvigorated.

(Absolute fairness requires that I acknowledge a few legislative initiatives on the subject of abortion. There were two principal ones. First, the Hyde Amendment prevented federal funding of abortions. Second, an amendment to Title X family planning funding required that private family planning providers participating in that funding program sequester federally funded programs for family planning from any program they also conducted that provided referrals for, or provided abortion services.)

Over 35 years have passed since North Carolinians elected John East to the Senate. An entire generation of time has passed. Deferring substantial action on “social issues,” under the Baker diktat, meant that no opportunity for an up–or–down vote had has been had on an amendment to the Constitution overturning the Supreme Court’s extra-constitutional adventurism.

By failing to confront the Court’s overreach, the Congress likely shares responsibility for other brazen excesses by the Court, such as its usurpation of the right of the States to provide a framework for marriage based on traditional heterosexual models. As with Roe, the Obergefell decision does not constitute an earnest search for history or meaning by the justices. As with Roe, it is only the stated preferences of the Court’s majority, gussied up in black robes.

A vigorous Congress, fully occupying its role, could well tame the Supreme Court’s excesses. Examples from history suggest as much. A few here will suffice.

In the Great Depression, Franklin Roosevelt and the Congress attempted to use several public benefit programs to address the impact of the depression on the Nation’s economy. Those programs – embodying Keynesian notions that a recovery could be best fueled by government programs of employment, construction, and the like – were keystones of the recovery programs adopted by the “political” branches of the federal government. In a series of cases, however the Supreme Court struck down eight of the programs, including the National Recovery Act and the Agricultural Adjustment Act.

Roosevelt took the decisions personally.

Rather than considering the possibility court had correctly construed constitutional limits on his power, Franklin went on the attack. He suggested that advanced age of certain justices explain their decisions. As a solution, on February 5, 1937, Roosevelt proposed his “court packing” plan.

Roosevelt’s court packing plan would have increased the number of slots for justices on the Supreme Court. Enlarging the Court would allow Roosevelt and a sympathetic Senate to populate the court with new justices allowing Roosevelt to construct a new court paradigm sympathetic to his programs.

Thomas Jefferson famously complained of the difficulty in making substantial changes where the courts of the nation had been packed with the nominees of the Federalist governments that preceded his in a letter to Judge Spencer Roane, he spoke of the “revolution of 1800” was stymied by judges holding lifetime appointments.

Franklin’s plan set aside any pretense that justices of the Supreme Court were apolitical. That pretense crashed hard on the rocks of his proposal. Everyone knew that Roosevelt’s justice nominees would be screened for their views on the Constitution and on the authority of the political branches to adopt the kinds of economic programs the court had struck down.

Roosevelt’s attack on the Court succeeded. Just two months later, before legislation enlarging the Court could be passed by the Congress, two of the Court’s justices made a startling about face on their constitutional philosophy, and in cases addressing the constitutionality of the Social Security Act and the National Labor Relations Act, a new, narrow majority of the Court upheld the constitutionality of these federal programs. As a result of that concession, the Congress turned away from the court packing plan, the Senate defeating the plan by a nearly 4-1 majority.

Another brief, but obvious, example of Congress -- and the Nation -- upbraiding the Supreme Court is found in the propounding of and ratifying of the Reconstruction Amendments to the Constitution. Prior to the Civil War, the Nation had lived under the uneasy truce called the Missouri compromise for three decades. That legislative agreement had fostered westward expansion, balanced admission of slave and free states, and had pushed the contentious issues of human slavery down the road.

In Dred Scott vs Sanford, the Supreme Court struck down the Missouri compromise. The Court held that Scott, as a black man, was not a person under the Constitution. As a consequence, in the courts view, Scott lacked the capacity to sue or be sued in the courts of the United States. Half-million lives and $80 billion in war costs later, the Nation rejected slavery through the 13^th amendment, granted citizenship status and rights of due process and equal protection to blacks through the 14^th amendment, and extended the elective franchise to them through the 15^th amendment.

Other examples exist, including the impact of the Congressional Watergate investigation on the Nixonian presidency, the impact of the Iran Contra investigation on the second term of Ronald Reagan, and the impact of the Whitewater investigation and impeachment on Bill Clinton’s second term. In each of these cases, Congress rose up in its constitutional role of oversight of the Executive Branch to turn back what it perceived either as possible criminal conduct (Nixon, Clinton) or extra-constitutional adventures.

I’m sure you each have your own thoughts on civic participation at its value in securing or rearranging societal constructs such as marriage and personal rights such as the right to life.

Do not misunderstand me.

I am not abandoning civic dissipation. I merely acknowledge a failure of expectations. Working for, voting for, the election of candidates because of their affiliation with the Republican Party has not induced that radical reconstruction of our society as a constitutional Republic of limited powers as I had hoped. Nor has it reinvigorated the keen devotion to the primacy of liberty that that indomitable commitment that was best expressed by Patrick Henry, “Give me liberty or give me death.”