Who Champions Liberty?

Tibor R. Machan

In the May 31, 2007, issue of The New York Review of Books Professor Ronald Dworkin of New York and Oxford Universities quotes Justice Anthony Kennedy favorably (p. 21) championing what amounts to a libertarian position on the relationship between the majority's moral views and imposing these on the rest. As Kennedy stated in his majority opinion in Lawrence v. Texas (the famous, or as some would have it, notorious ruling that rejected laws against sodomy in Texas),

It must be acknowledged, of course, that the Court in [an earlier] Bowers [case] was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operations of the criminal law. (p. 21)

Kennedy was suggesting an arguably libertarian view concerning the relationship between moral principles that guide personal conduct and the government of a free society. But, as I recall, in many other areas both Justice Kennedy and Professor Dworkin do not share this libertarian approach. For example, in the matter of how people should dispose of their wealth and labor, whether they may consume dangerous drugs, or whether they may engage in consensual prostitution, all of which are also moral issues quite like the one about homosexuality and sodomy, they appear to be far from libertarian.

Certainly Professor Dworkin, a prominent voice championing widespread wealth-equalization by way of public policy, would have the government authorized to take form Peter to help out Paul, in quite Draconian ways, if we judge from his several books and essays, especially Sovereign Virtue (Harvard University Press, 2000). Indeed, Professor Dworkin’s selective resistance to the “tyranny of the majority” where it concerns coercing women to remain pregnant is quite widespread in the so called pro-choice community. Most in that community fully approve of freedom of choice only vis-a-vis remaining pregnant. On innumerable other fronts they share Professor Dworkin’s and Justice Kennedy’s (implicit) view that the government has full authority to make people follow the majority's—or what they take to be the correct—moral vision.

Quite apart from the issue of whether abortion should be banned—and that would depend on whether the ban applies when a woman is carrying a human being—what appears to make the pro-choice position as advocated by the likes of Professor Dworkin quite disingenuous is this highly selective view about the choices they believe people have a right to make without government interference. If anything, the abortion issue would be one where one could expect caution and a reluctance to accept the idea that the right to obtain abortion is unproblematic. It is far simpler to see that the right to smoke marijuana or engage in prostitution or do innumerable other things that are now banned by the government should be fully acknowledged and protected. The risk of drastic error does not exist there, whereas it is at least plausible to see such a risk with even the earliest of abortions.

Of course, so called pro-life advocates cannot brag about their own consistency. For example, many believe that an early fetus is a human being because it shows the capacity to feel pain and behaves in ways that are routine for infants. But this is equally true for many non-human animals whom pro-life advocates do not wish to protect (for example, against being used for scientific experimentation).

So it seems that both sides in the abortion debate tend to be pleading a lopsided, highly selective case and are not advancing a bona fide principles position. Until they change, their case will lack credibility in the eyes of a great many thinking people.