Wolves, lambs and rights
We Americans have long grappled with a basic legal and philosophical problem: how to reconcile the fundamental right of individuals to live full and independent lives with the right of society to limit those freedoms in the interest of the general health and welfare.
What makes this balancing act so complicated is that both concepts -- personal liberty and community benefit -- represent invaluable virtues. This is not a question of Good versus Evil. It’s a question of how to preserve and protect both interests, especially when they come into conflict.
The goal of this reconciliation process has often been described as “ordered liberty,” a phrase that pays respect to both virtues. As legal historian John Patrick has written, “Ordered liberty is the desirable condition in which both public order and personal liberty are maintained. But how can liberty and authority, freedom and power, be combined and balanced so that one does not predominate over the other?”
This is not a question confined to law school classrooms or judicial courtrooms. It poses enormous realworld consequences. Justice Samuel Alito’s draft opinion, which would cancel abortion rights and reverse a half-century of settled law, trashes the “desirable condition” of “ordered liberty” and makes no attempt to reconcile, or even recognize, conflicting interests.
Instead, he flatly denies that access to abortion is a fundamental right protected by the Constitution. And therefore, state legislatures, “the people’s elected representatives,” should have complete control over the law in this area, no matter the adverse impact on individual lives. If Alito’s opinion becomes law, it would represent a triumph of disordered non-liberty.
That does not mean the opposite view should prevail, the arguments voiced by some extremists who oppose virtually any restrictions on abortion rights. The Supreme Court got it right in the Casey case of 1992 when it upheld the principle of individual choice but permitted limitations that did not impose an “undue burden” on women seeking to end their pregnancies.
In fact, the court upheld four of the five restrictions passed by the Pennsylvania legislature, including parental consent requirements when the mother is a minor and a 24-hour waiting period. The Casey decision reflected an honest attempt to follow the framework of “ordered liberty” -to reconcile “freedom and power” in a workable compromise.
What makes this debate even more confusing is that few parties on either side are consistent in their views. They often change principles depending on the outcome they hope to achieve.
Take the issue of guns. Conservative supporters of gun rights say they are defending a fundamental principle, enshrined in the Constitution, and thus they oppose virtually any restriction on their freedoms. They were thrilled by the Heller decision of 2008 that struck down gun control measures enacted by the District of Columbia, even though it mirrored the same reasoning used by the Court to enshrine abortion rights revered by liberals in the Roe decision of 1973.
“Ordered liberty” can only flourish in a society where all sides have a decent respect for the spirit of compromise, and for each other. No value is more sacred in the Western tradition than the primacy of the individual, a value enshrined in the Declaration of Independence itself: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Yet even “unalienable rights” have limits. As Justice John Marshall Harlan wrote in 1905, upholding a mandate that citizens get vaccinated during a smallpox outbreak: “But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”
The reverse argument is also true. Our democratic system rightly gives enormous power to the people, to a voting majority in an election or a legislature. But democracy does not “import an absolute right” to pass laws that violate individual liberty. James Madison warned darkly about the “tyranny of the majority,” and a quote often attributed to Benjamin Franklin states that in its most dangerous form, “Democracy is two wolves and a lamb voting on what they are going to have for lunch.”
Justice Alito’s opinion mandates the power of the wolves to outvote, and override, the rights of the lamb. And in a system of “ordered liberty,” that’s wrong.