On April 26, 2019, the Kansas Supreme Court discovered that a natural right to abortion exists in Kansas. The majority’s lynx-like legal vision spotted the right in the “penumbras, formed by emanations from those guarantees” contained in the first section of the Bill of Rights of the Kansas Constitution, which reads: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
The ruling strikes against a Kansas law banning dilation and evacuation (D&E) abortions, that is, “human dismemberment,” in the words of Justice Caleb Stegall, the lone dissenting voice. His core argument one commentator phrases as follows: “[Stegall’s] dissent is not based on whether abortion is morally right or morally wrong, but on the right of the people to govern themselves on the matter.” Indeed, Stegall claims that “The majority’s decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state.”
Let us examine what underpins the arguments on each side.
Perspectivism and Originalism
To grapple with the logic of the nearly 200-page ruling, it somewhat helps to read a 28-page concurrence-in-result quibbling about the majority’s confusing application of strict scrutiny. After suggesting an alternate approach based on the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, Justice Dan Biles concludes by evaluating the extensive history lessons of the majority and dissent:
For me, an originalism search gets us only so far when divining meaning for words with such obvious open-ended qualities as ‘liberty’ or ‘inalienable natural rights.’ The historical back-and-forth really just boils down to how much weight is given one selected fact over another.
Whether those qualities are obviously open-ended or obvious and open-ended, Biles’ is obvious question-begging in favor of perspectivism. This philosophical view claims that the truth of a view is limited to its point of origin, its perspective.
While it’s not pure relativism, it means that, if worldviews were like hills scattered across a wide plain, some hills are higher and better than others, but no perspective can grasp the whole plain “objectively.” This logic is clear in the next sentence, where Biles opines that debates about originalism are otiose:
I believe our [state constitution’s] framers had to understand this interpretative dynamic and picked those particular words [of the Kansas Bill of Rights, section 1] because they require contemporary context. This means we must apply what ‘liberty’ and ‘inalienable natural rights’ mean in the real world today for a pregnant woman.
One wonders if the majority would find as odious some future court ruling or state amendment that voids their finding, as would those framers in Wyandotte, Kansas have found the future reasoning of the very judicial body they constituted. Yet how could they, if it is true that the meaning of words in legal texts may vary from age to age by skillful judicial alteration of “open-ended” terms?
This welterweight philosophy is thus caught between two sparring heavyweights in more than an editorial sense. Biles is a yawning spectator, confused as to why the title match is necessary, since the decision has been scored in advance by the “real world” demands of our “contemporary context.”
Which Comes First: People or the Government?
However, 6-1 turns out to be unfair for other reasons. The majority wastes no time, Stegall observes, on “complexifying factors,” the gruesome realities of human dismemberment abortions. Despite their lip-service to originalism, “the majority is in the judicial Wonderland” of the living constitution.
Invoking the spirit of this living constitutionalism (while avoiding its name), today’s majority proceeds as follows. First, it contrives to find a ‘wide range of judicially enforceable [though unenumerated] rights’ in section 1 of the Kansas Constitution Bill of Rights. … Then it divines a ‘natural right’ to abortion. … And finally, it decides to review restrictions on that newly minted right according to one among varying levels of judicial ‘scrutiny’ depending on its favored or disfavored classification.
This is precisely what the majority does, rewriting in about 30 pages the history of American natural law jurisprudence. To undermine the majority’s interpretation, Stegall employs a pair of interlocked distinctions. The first highlights two readings of John Locke’s political philosophy, which inspires nigh-verbatim the “open-ended” wording of the offending Section 1. The second notes two answers to the old question: Which comes first, people or government?
Stegall calls the two interpretations of Locke’s philosophy the “voluntarist” and “commonwealth lens.” Through the voluntarist lens, one sees Locke as the original instigator of every attempt to tear down traditional morality. Voluntarist freedom is the freedom from external ties or pre-existing notions of an objective or common good.
Interpreters sometimes use this lens to explain why progressives can claim to be heirs of Locke’s liberalism while proposing an ever-expanding list of freedom and rights. This lens makes possible critiques of Locke popular among some philosophers and theologians, and while it quickly involves heady abstractions, it is nonetheless cogent and compelling at that level.
The commonwealth lens focuses upon a different freedom in Locke’s philosophy, a freedom for the pursuit of a greater, political common end. This lens also allows us to see a more concrete, culture-and-tradition-bound Locke, writes Stegall:
The dominant and accepted jurisprudential view of the Lockean natural rights tradition during the first century-and-a-half of our existence as a nation—and for our entire existence as a state—has focused on the idea of a limited central power chartered by consent to secure and promote a ‘commonwealth.’
Thus, the voluntarist-commonwealth distinction juxtaposes a practical, jurisprudential reading of Locke against a conceptual, philosophical one. (We will return to this below.) For now, notice that the commonwealth lens reads Locke in the light of a long tradition of Western jurisprudence, and this is the reading we can find believable when people are more virtuous. Today, however, this reading must compete alongside the abstract drives and urges projected through voluntarism.
Through the voluntarist lens, you see a pro-choice Locke, where the fetus is a piece of Lockean property. This was the lens used by the current majority of the Kansas Supreme Court. By contrast, through the commonwealth lens, you see a pro-life Locke, although the more American culture succumbs to progressive values, the more you have to squint.
Now, we still need an explanation of Stegall’s phrase “to secure and promote a commonwealth.” This is where his second distinction is necessary. It is based upon the following question: Do individual rights come first, then government, or is it government first, then rights? Stegall finds two possible answers in the words of James Madison: “The European model of government called for ‘charters of liberty … granted by power,’ but America provided a new example of ‘charters of power granted by liberty.’”
The second answer, that the charters of a government’s limited powers are granted by the liberty of the consenting governed, is indeed as old as our nation. They were its first words. Stegall movingly reviews the tradition of this answer—from Washington, Lincoln versus Douglas, Bleeding Kansas, and Justice Brewer—along the way to his originalist interpretation of Section 1.
Rights First, Then Government
How does highlighting this “rights first, then government” answer help us to understand the nature of a true commonwealth? Because it reminds us that having a commonwealth is “that for the sake of which” liberty constitutes power in the first place. That is, it reminds us of the goal of consenting to limited government. Here’s Stegall:
Kansans were just as interested in achieving an organized, stable, peaceful commonwealth as they were in retaining individual sovereignty. The liberty proclaimed in both the Declaration and in section 1 was not just the negative liberty of the pre-political individual, but also the ‘positive liberty’ of newly created ‘citizens of a self-governing society to participate and act for the public good and to use their government to seek, in Aristotle’s words, ‘not merely life alone, but the good life.”
That is, the commonwealth lens reads Locke with a longer view of history, recalling the original purpose of civil society, the establishment of “an organized, stable, peaceful commonwealth.” That is, our original political goal as a community was defined by a shared common-weal—a common or public good. However, what is the public good?
One scholar explains that it can be summed up in the phrase “justice and peace.” In other words, “The public good in this older sense is not a material thing, nor a sum total of individual goods. Peace and justice are traditionally understood to be the public goods that comprehend all others for the political regime.” For such an end, Locke and the Founders thought: does liberty charter power?
Here return objections based upon the “real world” demands of our “contemporary context.” What could be meant for all time by “the good life,” or “justice” and “peace”? Don’t these words mean different things at different times?
Recall that the two readings of Locke, the voluntarist and commonwealth lens, were opposed as a more theoretical reading (voluntarist) to a more practical one (commonwealth). When theory is applied to practice, the voluntarist reading of Locke spawns living constitutionalism. The voluntarist judge is not limited by pre-existing reasons or truths, but enabled by the perspectival and passing human needs of the day. This destroys the rule of law because the law can be replaced by interpreting it according to a judge’s preference.
So, what theoretical half corresponds to the practical half of originalism? The philosophical opposite of voluntarism is intellectualism. Voluntarism claims that the essence of the human good is chosen by one’s will (voluntas), while intellectualism states that it is rather had by insight into the contours found in the reality of human nature by one’s mind (intellectus). Voluntarism says, “This is good because I want it.” By contrast, intellectualism says, “This is good because I see that it is so.”
Voluntaristic philosophy has consequences. While abortion is never mentioned in the Kansas constitution, the higher hill on which the majority apparently sits allows it to write into existence the “natural right to abortion” to fit the politics and policies of the Democratic Party. That is, voluntarism goes hand-in-hand with perspectival jurisprudence. Old words (and the truths they used to express) really can mean different things at different times: “When I use a word it means just what I choose it to mean—neither more nor less.”
Intellectualism and Same Truths
By contrast, intellectualism sees the same truths about human nature throughout history—in different lights and contexts, but nonetheless recognizes them as the same. Intellectualism explains how generations of parents can hand to their children, like treasured heirlooms and not impositions of power, the old truths about who we are. These are not true because they are so old, but old because they are so true.
Intellectualism also explains why some generations see those truths more or less well, because a good upbringing is measured by this sort of sight. It explains how a people can, by legislation, actually improve its laws.
Only such a tradition of reasoned insight about human goods can successfully oppose the voluntarist Locke and play theory to Stegall’s originalist practice. Why? Because only then can we explain how a law’s meaning could “be fixed if it is to be the people’s bulwark against arbitrary power manifest in the vicissitudes of time.” We are otherwise doomed to a tyrannical ontology of “open-ended” human qualities. In other words, Justice Biles’ philosophy of construing “what ‘liberty’ and ‘inalienable natural rights’ mean in the real world today” leaves us with a rule of law as changeable as popular music.
The Kansas court majority has not only given us another instance of judicial tyranny (they take comfort in the fact that there are 17 other rogue judiciaries out there). They have opened a judicial abyss, a chasm without footing, having jettisoned reasoned tradition and rejected belief in the capacity of free people to deliberate as citizens.
The framers at Wyandotte in the times of “Bleeding Kansas” could see well enough, despite their limitations, the truth in the phrase “All men are possessed of equal and inalienable natural rights.” Because of this, they constituted Kansas a free state, without slavery. Stegall has shown us that the killing of unborn children in Kansas, a state “birthed in the crucible of pitched battle between two opposed and irreconcilable ideas—government by consent or consent by government,” can only be declared a natural right by undermining the political liberty of its citizens.