Roe v. Wade and The Conflict Between Legal, Political and Religious Truth
ethics, philosophy, truth, abortion
This essay focuses on the nature of legal, political and religious truth, a trilogy of forms through which we express fundamental values that is more interconnected than we might think. The first part of the analysis examines traditional arguments that have been made about the nature of truth, its functions and sources, and how it is that humans perceive what is consensually true as well as that which different people come to believe is true. The final part of the essay develops the analysis in the context of the competing positions, arguments and conclusions applied in the Roe v. Wade decision regarding the conflicts in values and beliefs applicable to the power of a woman to elect to terminate a pregnancy versus the power of the community to inhibit that individual choice. The primary inquiry involves intellectual historian Crane Brinton's concept of noncumulative knowledge. Noncumulative knowledge represents the kinds of knowledge achievable in areas of inquiry such as philosophy, morality, religion, politics and ethics. Like Arnold Toynbee, Brinton concluded that we can never prove the fundamental propositions in noncumulative areas by use of empirical methods or logic. He contrasts the inherent uncertainty associated with noncumulative knowledge with the pursuit of knowledge in the cumulative domains of science. The noncumulative dimension symbolizes the relevant conditions of what constitutes truth in a discipline such as law. Law is a form of noncumulative knowledge in virtually all its contexts.
While limited elements of such matters can be studied empirically, at their heart they are matters of socially constructed choice, not empirical proof.
Non-cumulative forms of truth are particularly interesting and problematic in the context of constitutional interpretation involving controversial political and religious values. At the level of constitutional interpretation and argument these seemingly distinct dimensions are intertwined in ways that are not necessarily coherent or predictable. Certainly this was the case with Roe v. Wade, a decision by the U.S. Supreme Court that was considerably more political than legal. Roe is a critical point at which worldviews collide and continue to collide. Roe is a transformative force that for three decades has generated powerful streams of social pressure. The pressure wave set in motion by Roe has impacted on our laws, political organizations, and social and religious passions.
Roe v. Wade transcended the normal boundaries of what judges do. We see on all sides of the Roe equation, including the judicial, a virtually complete absence of truth-seeking, no honest discourse, and the use of propaganda, sloganeering and ideology rather than evidence, credible analytic method, or full consideration by anyone of the complete range of implications of the competing positions. Roe v. Wade is thus an exercise of raw political power ostensibly justified by legal analysis and backed by the power of law. Given the positions taken by the dissent the same conclusions about the political nature of the Roe v. Wade controversy would be valid if the Roe Court had reached the opposite conclusion. My intent in writing about this issue in the context of legal, political and religious and revealed truth is to attempt to analyze the conflict in its fuller dimensions, not to take a position on the issue itself.
David R. Barnhizer, Roe v. Wade and The Conflict Between Legal, Political and Religious Truth, SSRN Cleveland-Marshall Legal Studies Paper No. 05-104 (March 2006)