June 24th, 2022

I confess to not ever being comfortable with having pride in the country you were born in. Conceptually, I think it’s a flawed idea from the get go. A recipe for provincialism and a potent catalyst for intolerance and violence.

Having said that, I admit there have been moments I’ve allowed myself to warm my soul near the glow of its fire. Like a good fire, it has a hypnotic and soothing quality, it allows us to take pride in the things we’ve done right (insert things your country has done right here) but it’s vital to keep one’s distance from it or you risk getting burned by the many horrible things it’s done (insert corresponding list here).

I am American. Winston Churchill once said of my country, “America always done the right thing, after it’s tried everything else.” I wish it were that simple. Because today, in my view, The Supreme Court took one of the things we’ve done right for half a century and smashed it into shards. They have reversed the slow but seemingly inexorable march towards our aspiration of a “more perfect union” (a beautiful, if grammatically dubious phrase). But that’s the problem. What’s great about America is that it’s the only nation founded in an idea, an aspiration. The tragedy of America is the unending tension of its competing and antithetical aspirations.

The overturning of Roe vs. Wade is obviously an emotional tinderbox. I’m not here to debate it on ethical grounds or suppose your morality comports with mine. What I’m to trying to do briefly is raise a problem that makes this decision, in my view, not only the most damaging ruling in a century, but also perhaps the least American verdict in history.

I’m not a constitutional lawyer, but I’m going to jump right in the deep end, anyway (nor am I a lifeguard). I mentioned earlier America is essentially an engine of aspiration. And it is th first nation to conjured to life with words. So let’s look at some of those words in America’s instruction manual: the Constitution.

In Jewish law (I know: this sounds like a tangent, but it’s not. In fact, it’s the spine of my argument). Anyway, where were we? Oh yes, Jewish law.

In Jewish law, a fetus becomes a person only at birth. The Talmud suggests that prior to 40 days (40 is a popular number in Judeo-Christian lore), the fetus has an even more limited legal status. Indeed, one line of Talmudic scholarship asserts that until then, the fetus is “mere water.”

The Talmud also makes clear the ancient rabbis regarded a fetus as part of its mother throughout the pregnancy, as it is dependent fully on her for its life — a view that echoes the position that women should have total autonomy of their bodies.

I’m getting to my point, I swear, although some of you are probably ahead of me now.

The belief that abortion is “murder” is generally not one shared by scientists. I think it’s reasonable to conclude that the opposition to abortion springs predominantly from a religious (read: Christian) perspective. And that’s a problem. A constitutional problem.

Because, given all of this, how can we square today’s decision with the views of one of the Constitution’s principal architects, James Madison? His belief that religion had no role in American law or government was so absolute that he was appalled at the idea of Congress having a Chaplin. How does it align with the author of the Declaration of Independence, Thomas Jefferson, who wrote there would always be an unassailable “wall” between Church and State?

More crucially, (and here go, here’s the point) how does this not violate the First Amendment? If a tenet of one faith at odds with that of another is codified into law, it is hard to make a sincere argument that there is true freedom of worship. We can’t all have freedom of religion, or freedom from religion, if one faith is elevated above all others. The other creeds will inevitably be forced to shiver in its shadow.

Before the Constitution, religiously based laws were commonplace in the United States.. You could not hold a political office in New York if you were Catholic. In Maryland, you HAD to be Catholic to appear on a ballot. One of the driving forces behind the Constitution was to eliminate the divisiveness of religion in public life once and for all.

Today’s decision is clearly at odds with that aim. Ironically, the justices who overturned this precept view themselves as strict constructionists, or people who pride themselves on a literal, concrete reading of the Constitution’s text. Let’s take them at their word (although we shouldn’t). Excuse me, Justices, but you seem to have skipped a part.

It’s right near the top.


14 thoughts on “June 24th, 2022

  1. Spot on. But Winston Churchill may still be right, if this is an example of America doing another wrong thing before it does the right one. Roe v Wade was always a flimsy basis for constitutional change, as many feminists have recognised over the years, and in the fullness of time perhaps it will be replaced by something more robust and less challengeable. That’s of no help to today’s women, of course.

  2. I see the Roe decision as just another (albeit the most cynical) act in a class war designed to bring our life expectations down to par with other labor markets around the world. So far only one side, the ruling class, has initiated any actual battles. I look forward to the moment that changes and they realize just how vulnerable they are.

    1. Great point. I would only add that the realistic life expectations of other first world labor markets are markedly higher than ours. They can expect quality healthcare, they can expect not to worry about affording college, and they can also rest assured that the fundamental human right of privacy is enshrined in its nation’s laws. We enjoy no such comforting thoughts.

  3. How is it possible that we have a government and society that calls abortion murder and yet allows kids in schools to killed by people who have no business owning guns? What is wrong with this picture? Oh my—don’t get me started . . .

  4. Great points Jack. It’s been a week of atrocious Supreme Court decisions. 🤮

  5. As a woman I can not even begin to tell you how disapointed, angry and so many other things I am over this. Its just the beginning of an even bigger downward spiral im afraid.

  6. Brilliant, Jack! What I love most about this piece is that it approaches our country’s debate from a new angle. Perhaps what’s so frustrating about the course our country seems to be taking is that no logic from either side seems to be relevant. We’re arguing over deeply held beliefs using different kinds of facts and spurred on by people who benefit from our dividedness.

    Right near the top — yes, perhaps we just need to send a note to all our leaders, maybe with this post attached, and ask them to read it again.

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