Caiati on Feser on the GOP Platform re: Abortion

This just in from Dr. Vito Caiati:

I am wondering if you have been following the ongoing, intense debate on the GOP platform that has taken place on X and in several conservative online journals, which was ignited by Edward Feser and other social conservatives, who are strongly critical of the removal of long-standing planks supporting a national ban on abortion and in favor of the traditional definition of marriage, viewing both as fundamental capitulations to the increasingly hegemonic secular ideology of the Left. (Feser on X: “The Left will force us into the catacombs, while the Right will tell us that going into the catacombs voluntarily is the most politically realistic way to keep the Left from forcing us to go there”).

Yesterday, Feser posted a short piece on his blog, “Now is the time for social conservatives to fight,” that references his tweets on X and several articles on this matter (https://edwardfeser.blogspot.com/). I think what we are seeing here is the populist nature of the MAGA movement, headed by Trump, ever more openly differentiating itself from the traditional conservatism of the GOP, and I am curious to know your thoughts about this leftward cultural shift. I myself think that Feser makes some excellent points and see no reason for him and others not to fight for their moral and social ideals within the party, but also that, given the grave crisis of the nation, these do not justify any hesitation about aggressively supporting Trump/Vance.

We've discussed this before, Vito.  See, for starters, Abortion and Last Night's GOP Debate (24 August 2023).  There I wrote:

The overturning of Roe v. Wade returned the abortion question to the states. That means that each state is empowered to enact its own laws regulating abortion. Some states will permit abortion up to the moment of birth. Others will not. Different states, different laws.

What then are we to make of Mike Pence and Senator Tim Scott and their call for a Federal law that bans abortion (apart from the usual exceptions) during the last 15 weeks of pregnancy? 

Am I missing something? (When I write about political and legal issues, I write as a concerned citizen and not as an expert in these areas.) It strikes me as obvious that if the abortion issue is for the states to decide, then there cannot be any federal abortion laws. 

[. . .]

The precise question is: How is a federal abortion restriction consistent with the states' right to decide the abortion laws? ND Governor Doug Burgum alone seemed to understand the problem, but his fleeting remark failed to set it forth clearly.

The answer to the precise question is that the federal restriction is not consistent with states' rights. It is unconstitutional.

This is not a very satisfying answer given that abortion is a moral abomination. (See my Abortion category for arguments.) But arguments, no matter how good, cut no ice in the teeth of our concupiscence. This is explained in my Substack article, Abortion and the Wages of Concupiscence Unrestrained.

In the Comments, you agreed with me:

“The precise question is: How is a federal abortion restriction consistent with the states' right to decide the abortion laws?”

Like you, Bill, I am no expert in constitutional law, but I believe that such a restriction would not be consistent with the right of the states to determine the law on this matter. The confusion of Pence and Scott appears to arise from their understanding of the wording of the Supreme Court in the Dobbs Case, in which the majority held: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives” (https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf). Specifically, they seem to interpret the phrase “returned to the people and their elected representatives” as one that permits the federal legislature, the Congress, to establish a national ban on abortion during the last 15 weeks of pregnancy, save for unusual cases. However, I think that such an interpretation contradicts the Tenth Amendment, which decrees that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Of the enumerated or expressed powers granted to the United States, i.e., the federal government, none include that of regulating abortion, nor is such regulation proscribed to the states; therefore, such power resides with the latter. Moreover, an attempt to utilize the Fourteenth Amendment, which protects the rights of individuals granted by the Constitution, would not permit federal intervention, since the Court found in Dobbs that it does not grant such a right.

Posted by: Vito B. Caiati | Friday, August 25, 2023 at 02:58 AM

I responded:

Vito's comment above is a model of how a good comment is constructed.

Note that he deals directly with the question I raised. He does not go off on a tangent, or change the subject to a topic that interests him but is not germane to my entry. He engages what I said and he lets me know whether he agrees or disagrees. As it is, he agrees.

He then supplements what I said in two ways. He points out the relevance of the Tenth Amendment to the question I posed. That had occurred to me, but I failed to mention it. Governor Burgum alluded to it near the end of that segment of the debate when he whipped out his pocket Constitution.

But what I found most useful in Vito's comment is his explanation of the confusion of Pence and Scott. Vito: >>Specifically, they seem to interpret the phrase “returned to the people and their elected representatives” as one that permits the federal legislature, the Congress, to establish a national ban on abortion during the last 15 weeks of pregnancy, save for unusual cases.<<

So the mistake that Pence and Scott made was to confuse the people of the U.S. with the people of a particular state. Here is 10A again: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Now I don't think one has to be a Constitutional scholar to know what that means. "The people" refers to the people of a given state, such as North Dakota or Massachusetts, not to all the people of the U.S.

Posted by: BV | Friday, August 25, 2023 at 02:02 PM

See also: More on the Politics of Abortion: Ron Paul and Subsidiarity.  (26 September 2023)  This entry is relevant to Feser's position inasmuch as he is a traditional Catholic who, I expect,  accepts the principle of subsidiarity.

Also relevant to Feser's position is his integralism. Another prominent integralist is Adrian Vermeule who refers to his integralism as political Catholicism. According to integralism, traditional Roman Catholic abortion doctrine could be justifiably imposed by the state. 

As I recall, you accepted my rejection of integralism.

You say, " . . . Feser makes some excellent points and [I] see no reason for him and others not to fight for their moral and social ideals within the party . . . ."

What are these points, Vito, and how could Feser fight for his abortion convictions within the American political system, given the Dobbs decision?

I suspect that something much deeper is at issue here. I suspect that what conservatives such as Feser are ultimately opposing is our constitutional system of government, as she was founded to be, with its commitment to religious liberty and federalism.  What he wants is a different sort of political order than the one the Founders bequeathed to us. 

One thing you and I and Feser all agree on: abortion is in almost all cases a moral abomination from the moment of conception on.  And if this is so, it it so always and everywhere. But SCOTUS has spoken and the issue is now one for the states.  Some states will enshrine the abomination, so to speak, others will not. We don't like that, but we have to accept it. I can think of only two alternatives: either change our system of government or convince people to rein in their concupiscence. Neither of these alternatives has much chance of success.

 

Comments

[Vito B. Caiati]

Bill,

Thanks for your thoughtful reply and for reminding me of our earlier discussion of abortion after SCOTUS overturned Roe and Casey.

When I wrote, “Feser makes some excellent points and [I] see no reason for him and others not to fight for their moral and social ideals within the party,” I had in mind his worry that these compromises on abortion and the traditional definition of marriage run the risk of “transforming the GOP in a socially libertarian direction” (https://x.com/FeserEdward). So, while I do not share his endorsement of a national ban on abortion, given that the Constitution confers such power to the states, I think that he is right in pointing out the dangers of the party, in its quest for power, flirting with the secular world view of the Left with regard to traditional social institutions and morality.

Vito

[jim reibel]

Gentlemen:
Thanks for bringing Prof. Feser's post to our attention and for your excellent discussion. BV's concluding paragraph is a wonderful, and depressing, summation. The State establishes the criminal law, not the moral law. Abortion is everywhere and always a moral abomination. SCOTUS has appropriately placed the determination of criminal regulation with the individual states. The penultimate sentence presents the alternatives clearly. The conclusion, given human nature follows. In the short term: stalemate. Longer term, I fear continued moral degeneration to the point where concupiscence gains the upper hand and successfully installs a systemic change enshrining "reproductive rights".

[john doran]

There are workarounds:

1) Congress could pass legislation defining "Person" so as to include human beings from the point of conception.

2) Alternatively, there could be a constitutional amendment (the 28th), doing the same thing, since "person" is everywhere used in the document, but nowhere defined.

Neither are likely, but that is as may be.

[BV]

Testing 1, 2, 3. A global internet outage seems to be affecting Typepad.

[james soriano]

The de-emphasis this year on the pro-life plank in the Republican platform is certainly a departure from past practices as noted in the two articles Ed Feser links.

This can be taken in one two ways: either it’s a tactical move, apparently made at Trump’s insistence, designed to blunt Democrat campaign attacks against him, or it could signal a long-term shift in the Republican world outlook, which is what the pro-life movement fears.

There’s a tension here between a top-down and a bottom-up process. The pro-life movement is genuinely grass roots. Its core advocacy is not something that many elite opinion shapers defend. Since the 1970s, the movement has doggedly searched for voices at the pyramid apex to champion the cause. They’ve run a long race.

A political campaign platform is more of a top-down dynamic. It’s about party elites deciding among themselves what to say to the people. The calculus and the optics are different.

Pro-lifers now say that in the past the Republican Party gave them a seat at the table. The Party had opened enough space to allow the bottom-uppers to get the ear of the top-downers. This year, they say, something’s changed. They fear they no longer have a seat at the table, but rather have been given one along the wall, where the note-takers sit.

If the platform writers have a tactical gambit in mind, I can understand why they de-emphasized the pro-life plank in the platform, but at the same time, I can understand those who fear that the Party elites really have more in common with a "national uni-party” than they do with conservative social concerns.

Nonetheless, Trump and Vance signal they want to turn the Party in a populist direction. It would seem that populism as such would be friendly to grass-roots, bottom-up advocacy. Pro-lifers should not assume they’ve captured the Party elites. They have more running to do.

[Vito B. Caiati]

Bill,

I think that Edward Feser's position, with which I agree, is stated clearly by him in a tweet last evening on X:

"The defense of the unborn and the natural structure of marriage are not merely 'big issues,' but concern the very foundations of the entire social order. Their neglect is among the very deepest reasons for the crisis the West is undergoing. Leadership that regards them as no more urgent than cleaning a 'spot on the wall in the basement' (Eric Trump’s characterization of his father’s attitude) is leadership that is utterly devoid of the most basic understanding of that order and of what threatens it. Such an attitude in leaders is itself a profound manifestation of our decline, and thus cannot be part of the cure. As I keep saying (even if many would prefer to attack straw men), the problem is not that the new GOP does not want in the short term to push the abortion issue – I understand that this is not feasible right now. The problem is that it has lost all sight of the long-term consequences of abandoning the very principles that the old platform at least held up as an ideal."

So, we see here, that Feser, fully cognizant of the legal (implicitly the SCOTUS decision) and political (Democratic Party control of many state governments) realities of the moment, wisely seeks to prevent the GOP from (as I stated above), "flirting with the secular world view of the Left with regard to traditional social institutions and morality." I think rather than "flirting," I should have written surrendering. We must be on guard that this does not happen, for the assault on traditional sexual norms, the family, and our children are the ideological avenues by which the Left seeks to undermine what remains of the moral and institutional foundations of the Republic. The ideological hegemony of the Left is so powerful that the temptation to yield to it on this or that matter is a very real danger, so it must be strongly resisted.

[Edward Feser]

It is worth adding to my comment above that other commentators who have been most vocal in their opposition to the platform change are people like Robert P. George, Ryan Anderson, Albert Mohler and Michael Pakaluk, none of whom is sympathetic to integralism. And that those who are associated with integralism and postliberalism have mostly been silent about the change. Again, the dispute has no essential connection to integralism.

[Edward Feser]

To add what I posted at Twitter today:

"I will try once again to clear away some tiresome straw men that keep coming up in the debate over the GOP platform change and Vance’s comments on the abortion pill. There is a difference between (1) refraining for the near future from trying to advance some good end, and (2) positively abandoning that end. And also a difference between (3) merely tolerating some evil, and (4) positively endorsing, or appearing to endorse, some evil. No one is criticizing the GOP platform change for (1). Rather, they are criticizing it for (2). No one is criticizing Vance for (3). Rather, they are criticizing him for (4)."

[BV]

Vito,

Tony Flood is in basic agreement with you: https://anthonygflood.com/2024/07/truths-the-republican-party-no-longer-affirms-or-denies/

Tony in an e-mail to me: >>It complements what Dr. Caiati wrote, which I read after posting my thoughts:

I think what we are seeing here is the populist nature of the MAGA movement, headed by Trump, ever more openly differentiating itself from the traditional conservatism of the GOP, and I am curious to know your thoughts about this leftward cultural shift. I myself think that Feser makes some excellent points and see no reason for him and others not to fight for their moral and social ideals within the party, but also that, given the grave crisis of the nation, these do not justify any hesitation about aggressively supporting Trump/Vance.<<

Here is my response to Tony on 24 September 2003 when he said similar things: https://maverickphilosopher.typepad.com/maverick_philosopher/2023/09/abortion-again.html

[BV]

Gentlemen,

Thanks for the excellent comments. Good discussion. I hope to respond later. An exciting time to be alive, Let us hope it is not an EXITING time. Who could be bored? I hope you are investing in precious metals, broadly construed.

[BV]

Vito,

Both you and Feser appear to be missing my point. While we all agree about the social and cultural decline, my question concerns what can be done about this politically at the Federal level within the limits set by the Constitution. What do you propose should be done?

[Vito B. Caiati]

Bill,

To answer your question about what could be done on a federal level, consider the question of abortion. Given the recent SCOTUS decision, which ruled that “the authority to regulate abortion is returned to the people and their elected [state] representatives,” the Congress, could not now pass a law banning this murderous practice; however, it still possesses the power to cut off all federal funding of it, direct or indirect, assuming, of course, that both houses are in Republican control and that the party does not completely abandon its long-standing opposition to it. A Republican administration with control of the Department of Justice could immediately stop the legal harassment of anti-abortion persons and groups, which are now targets of the Left.

In the long term, a federal solution to abortion would require a constitutional amendment. Specifically, a new amendment would clarify the meaning of “Person” in Section 1 of the 14th Amendment. Currently the term “Person” in this Amendment is taken to mean a human being after birth, but through a new amendment, it would be defined to include human beings before birth (fetuses at all stages of their development), whose right to “life” could not be taken from them without “due process of law.” Now, certainly this is not a feasible objective in the short or medium-term, since its proposal would require a 2/3 majority of both houses, and its ratification a ¾ majority of the state legislatures or state conventions, but if the principle underlying the amendment is not abandoned by the GOP, there is nothing preventing the party from accepting state regulation now, while working for a federal constitutional ban in the future. Feser and I want the principle maintained in the GOP so that the eventual extinction of fetal murder remains, in a radically altered political environment, a real possibility. We should not forget that the struggle against slavery went on for many decades before its eradication.

Vito

[BV]

Vito,

That's a good response. I take both of your points in para 1.

John Doran @ 5:52 makes the suggestion you make in para 2. That had occurred to me, but not the points you make in para 1. So thanks for answering my question.

[BV]

Vito,

Have you read anything by this Curtis Yarvin fellow that Malcolm Pollack is fond of? If you have the time and the interest I would like to read your comments. Malcolm linked to this piece today: https://graymirror.substack.com/p/more-reflections-on-the-kamala-koup

[Ian M.]

By saying that the Constitution prohibits any federal abortion laws (absent an amendment) and that therefore we shouldn't make any efforts to enact one, are we allowing ourselves to be too beholden to a procedural or legal positivism?

Take some other category of persons. Suppose the 14th amendment didn't exist and some states allowed blacks or Jews to be murdered with impunity (and I don't mean the occasional extra-judicial lynching, but that certain states said you had the right to murder Jews and blacks for any reason whatsoever, or none at all): would we balk at efforts to enact a federal statute (or even executive order, or heaven forfend, an activist Supreme Court decision!) to prohibit this, insisting that proper procedure be followed with a Constitutional Amendment as the only recourse?

It is one thing for different states to handle abortion differently, which states do generally with respect to matters pertaining to criminal and civil law, but it is another for some states to declare that abortion is murder and for others to declare that a woman has a right to abortion, as this reflects fundamental differences in worldviews. Such a state of affairs is not stable, akin to how things were with the slavery issue before the Civil War.

[Vito B. Caiati]

Ian M.,

“Take some other category of persons.”

Well, that is exactly the problem. How does the American legal system define a “person.” The example that you give (“some states allowed blacks or Jews to be murdered with impunity”) concerns living post and not pre-natal human beings, but as recent scholarship on the murder of black slaves by their masters (Andrew T. Fede, Homicide Justified: The Legality of Killing Slaves in the United States and the Atlantic World) demonstrates, masters were almost never punished in state courts for such violent acts; few were charged, fewer found guilty, and a miniscule number made to punished by imprisonment. The legal distinction that the Federal Papers sought to draw between the civil law, in which slaves were to be treated as property, and criminal law, in which they were to be treated as persons, was simply not observed in practice: Not considered persons, slaves were murdered with impunity by those who owned them. It took the Civil War, one great achievement of which was the 14th Amendment to provide the constitutional protection to them as “Persons”; needless to say, the full application of this protection to black Americans took many more decades to achieve.

It is certainly not a good thing that a constitutional amendment is required to bestow the right of life onto pre-natal human beings, but—and I say this as no expert in constitutional law—but I think that it is correct to hold the as long as “Person” Section 1 of the 14th Amendment is understood by federal courts to mean post-natal human beings, the 10th Amendment would make a national anti-abortion law unfeasible, unless SCOTUS would find some legal justification to interpret the final phrase “or to the people” as somehow circumventing “ “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively...,” but that seems unlikely, given the overall sense of the text.

Vito

[Vito B. Caiati]

Bill,

Frankly, I am not at all impressed of the very little that I have read of Curtis Yarvin and in particular of this piece (https://graymirror.substack.com/p/a-conversation-about-monarchy) in which his neo-monarchist views are clearly stated, as in the following statements:

“An executive “under law” is not an executive at all. We are living in the Babylonian captivity of Article II, which can only be ended by a radical and unconditional act of executive restoration—an American reassertion of the ancient English rule that “the king is above the law.”

“To escape the sickening, ever-growing coils of DC’s Gordian knot, American voters have only one realistic option. They need to elect a President who clearly states his intention and preparedness to take over the entire American government, assuming plenary power—not just in response to any specific event or emergency, but immediately upon his inauguration (when his democratic authority is at its strongest).”

To imagine that the solution to the current grave crisis of our nation, one that encompasses not simply the structure of the federal state but also the social relations that characterize American capitalism at this stage of its development is highly naïve, at best. I have touched on the details of this crisis in other comments, so I will not repeat myself here, but the notion that some salvific figure in the form of a president with “plenary power” is the answer is, to be charitable, absurd. From where would such a figure emerge but from the very centers of power that now dominate the state. At a time when historically unparallel concentrations of wealth allow for the command by leftist globalist elites of most of the leading institutions of civic society—the media, the universities, the Internet, the entertainment industry--of one of the two political parties, and of the administrative apparatus of the federal state, any person who arises as a potential holder of this neo-monarchial presidency would be their creature. I spent the last half century immersed in the study of the states and societies of early modern Europe, during which time absolutist monarchies came into being, and I know of no monarch, however powerful, who undermined the interests of the noble ruling classes to which they were tied, even when the latter did not always recognize this fact. All the dreams of the anti-democratic elites who are have worked so diligently to undermine the institutions of the Republic—from globalism, to open borders, to the repression of political opponents, and so on-would be realized in the rule of this super-president. All the still standing remnants of political freedom of the Old Republic would be swept aside, and all of us would be the worse for it.

Vito

[BV]

Ian asks: >>By saying that the Constitution prohibits any federal abortion laws (absent an amendment) and that therefore we shouldn't make any efforts to enact one, are we allowing ourselves to be too beholden to a procedural or legal positivism?<<

Not as far as I can see. If our "unalienable rights" come from the Creator as the Declaration affirms, then legal positivism is a non-starter. The rights to life, liberty, and property are among the unalienable rights. My right to life, for example, induces in others the duty not to kill me. The legal prohibition against homicide codifies in the positive law a moral prohibition which is logically antecedent to the positive law. If I understand 'positive law,' it is the law enacted by the legislative branch of gov't, enforced by the executive branch, and interpreted by the judicial branch.

In a slogan: Morality precedes legality as its justification and ground.

Quite apart from the founding documents, it is self-evident to me that morality is logically and ontologically antecedent to legality and therefore cannot be reduced to or conflated with the latter. So even if there were no 2A protection of my right to the means of self-defense, I would have that right. That right can easily be derived from the right to life.

I am making two points. The first is that the Constitution itself rules out legal positivism. The latter is inconsistent with the principles, values, and presuppositions of the former.

My second point is that our rights are what they are, and have the normative 'bite' they have, whether or not they are codified, expressed, written down in any humanly-produced document.

I hope you gentlemen agree. If you do not, tell me why.

[BV]

I invite you to note also that while there cannot be illegal laws, there can be immoral laws. Therefore, legal positivism is a false doctrine.

Does that need explaining?

Can you refute my (enthymematic) argument?

[Vito B. Caiati]

Bill,

I, of course, agree with you.

Vito

[BV]

Vito writes @5:12,

>>It is certainly not a good thing that a constitutional amendment is required to bestow the right of life onto pre-natal human beings, but . . . I think that it is correct to hold the as long as “Person” Section 1 of the 14th Amendment is understood by federal courts to mean post-natal human beings, the 10th Amendment would make a national anti-abortion law unfeasible . . .<<

I would only add that 14A, sec. 1, properly interpreted, identifies persons with born (post-natal) human beings. And so, given the Constitution as she was written, pre-natal human beings are not persons, and so are not constitutionally protected from being killed.

If you say that they ought to be, then I will agree with alacrity -- but then you need an amendment (or rather an addition) to the Constitution.

[BV]

Vito,

Thanks for wading through Moldbug's article giving us your assessment. He's a clever guy, but perhaps too clever for his own good.

You zeroed in on perhaps the two weakest bits of his article. In the second quotation he out-Schmitts Carl Schmitt, who wrote about the Ausnahmezustand, the state of the exception, in which the executive could suspend rights, etc., but who didn't make the exception the normal state as Yarvin seems to be doing. And so I agree with your last para.

The only monarchy I would support is a genuine theocracy in which GOD HIMSELF is the absolute dictator. But no such monarchy could materialize this side of the eschaton, an eschaton that cannot be immanentized.