A Commentary on the Passing Scene by
Robert Paul Wolff
The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY. Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.
NOW AVAILABLE ON YOUTUBE: LECTURES ON KANT'S CRITIQUE OF PURE REASON. To view the lectures, go to YouTube and search for "Robert Paul Wolff Kant." There they will be.
NOW AVAILABLE ON YOUTUBE: LECTURES ON THE THOUGHT OF KARL MARX. To view the lectures, go to YouTube and search for Robert Paul Wolff Marx."
My son, Professor Tobias Barrington Wolff, who knows about this stuff and teaches Constitutoinal Law, posted this comment on FaceBook. It is chilling. "Concerning the prospect of Roe v. Wade and Casey being overruled:
The unexamined premise in these conversations always seems to be that overruling Roe would "return the issue to the States" such that the ability of women to decide whether to continue or terminate a pregnancy would depend on local sentiment. That is not necessarily the case.
If a hostile Court overrules Roe simply by saying that there is no right to individual autonomy under the Constitution that protects reproductive choice -- that the Constitution has nothing to say about the matter -- then yes, the issue would be decided by state law (assuming Congress did not enact a national ban on abortion).
But there is another direction the Court could go in overruling Roe. Advocates who seek to eliminate abortion rights often argue that the developing fetus is a "person" from the moment of conception for purposes of the Constitution. Many States that are hostile to abortion have considered "personhood" laws that declare fetal personhood from conception.
If the Supreme Court were to adopt this proposition -- which it expressly rejected in Roe -- and hold that the term "person" in the Constitution includes the developing fetus, then the next step would be for advocates to argue that it is unconstitutional for States to allow abortion. The argument would sound in equal protection. Murder laws in the United States prohibit the killing of persons. But if a developing fetus is a "person" within the meaning of the Constitution, and murder laws do not prohibit abortion, then those laws are making it illegal to kill some persons while allowing the killing of other persons. This, the argument would go, is a grave violation of the Equal Protection Clause and its command that a State may not "deny to any person within its jurisdiction the equal protection of the laws."
This is not a fanciful prospect. This argument is a foundation of anti-abortion advocacy, and it came up during the oral argument in Roe v. Wade, where Justice Potter Stewart (who voted with the majority in Roe) pointed out that a holding that the fetus is a "person" would necessarily mean that the issue cannot be left up to the States at all.
When the Supreme Court ruled last week that the First Amendment prohibits states from imposing agency fee requirements on non-union members, it took an issue that had previous been left up to the States -- with anti-union forces pushing against those requirements under the heading of so-called "right to work" advocacy -- and used the Constitution to nationalize the issue. In the process, it overruled a 42-year-old precedent that had been a mainstay of First Amendment doctrine in this area and, as Justice Kagan pointed out in her dissent, had been working well. Once again, this is not a fanciful prospect.
When we talk about reproductive rights and access to safe, legal abortion being at risk, the risk is not merely that access might vary from State to State. The risk is that the Court could decide to use the Constitution to nationalize the issue in the other direction."
As I observed in one of my books, in politics I am an anarchist, in religion I am an atheist, and in economics I am a Marxist. I am also, rather more importantly, a husband, a father, a grandfather, and a violist.