The barbarians are at the gates (again), so this old man feels a compulsion to write.

Nuance on abortion law

It’s probably obvious to regular readers that I’m the kind of guy who would be highly sympathetic to the reasoning of Justice Alito in the leaked abortion opinion overturning Roe v. Wade. But I think my reasons are out of the pro-life mainstream.

Take Roe as shorthand for "the basic Supreme Court abortion framework constructed by Roe v. Wade and Planned Parenthood v. Casey." I want Roe reversed because it’s bad law.

It’s bad law, first, because it’s poorly reasoned. If you doubt that, read Alito’s draft (as I have not, though I’ve read and heard about it), where he cites liberal scholar after liberal scholar who admit that the original Roe is poorly reasoned. Side note: Many liberal scholars tried to remedy that deficiency in law journal articles, Laurence Tribe multiple times with different rationales. Then SCOTUS, concerned that overturning the original Roe would reflect poorly on the court, came up with it’s own alternative rationale, including the risible "mystery passage":

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

It’s bad law, second, because among the rights protected by the constitution is a democratic form of government, so when the court declares democratically-enacted laws out-of-bounds, it shrinks the realm of our right to govern ourselves through democratically-elected legislatures.

That’s the court’s duty when the constitution requires it. But it’s the court’s duty not to overrule the democratic outcome when the constitution does not require it, elite opinion be damned.

That has been my primary concern with Roe ever since, during law school, I got conservative-woke on the abortion issue. And I think it’s out of the pro-life mainstream, especially as it ramifies below.

As has been noted by sentient reports of this week’s kerfuffle (not all reports have been sentient), the result of Justice Alito’s draft, if it indeed becomes the court’s Opinion in the case, will be to return the abortion issue to the legislative processes, mostly within the states.

If and when that happens, I will support quite strict restrictions on abortion legislatively. But even if I lose, and my state (astonishingly) mirrors the abortion enthusiasm of California and some other blue states, those laws will have a constitutional legitimacy that that Roe lacks.

I’m confident that this concession will make me look monstrous to some pro-lifers. But I’m also confident that it’s right. (And I’m moderately confident that pro-choicers are whistling past the cemetery when they talk about Alito’s draft in terms of its defying popular opinion on abortion; they wouldn’t be so worked up if all that was happening was a move of permissive abortion law from SCOTUS to Bismark.)

I’m aware of the argument of (most recently) John Finnis that the 14th Amendment requires that abortion be banned. I wasn’t persuaded of that basic argument 30-40 years ago when it was first floated, though it was clever and thought-provoking, and Finnis’ resurrected version didn’t persuade me, either.

But if you give me 2-to-1 odds, I’ll bet a modest amount that Clarence Thomas is going to demur from any Alito-like opinion to argue that Finnis was right. (I owe that intriguing speculation to David French, who stunned and silenced Sarah Isgur with it.)

Singing Truth, Screaming Lies

I am an enthusiastic and fairly skilled chorister, in addition be being Cantor in my parish. My longest non-church choral relationship is with a pretty good community chorus, with admission by audition and some paid staff including the Artistic Director.

Not surprisingly, most of our concerts are from the canon of western sacred music, almost exclusively Christian — masses, oratorios, Lessons & Carols, and such. It’s far and away the largest body of first-rate choral music in Western Christendom. We’ve even sung Russian Orthodox masterpieces twice.

The audience for that kind of music is aging and dying, which you’d probably guess if you thought about it.

So we occasionally shake things up with a pop concert (e.g., Bernstein’s Candide), some in collaboration with the local professional symphony, or even show tunes á la "show choir" under a guest conductor.

We did one of the latter quite recently. Reflecting on it afterward, two things hit me.

First, the show was too heavy on loud band accompaniment and loud songs and it really took a toll on my vocal chords — and my nervous system.

More important, I’ve been reflecting on the themes of some of the songs we sang (excluding consideration of what our guest soloist from Broadway sang, most of the words of which I couldn’t even understand; not that she mumbled, but the amplification is directed toward the audience, not toward the stage).

The themes are, in my considered judgment from 70+ years on planet earth, lies:

Come alive, come alive! Go and light your light Let it burn so bright! Reachin’ up to the sky, And it’s open wide You’re electrified!

And the world becomes a fantasy ‘Cuz you’re more than you could ever be … And you know you can’t go back again to the world that you were livin’ in ‘Cuz you’re living with your eyes wide open.

I’m flying high! I’m defying gravity! … And soon I’ll pass them in renown. And nobody in all of Oz, No wizard that there is or was Is ever gonna bring me down!

There’s nothing wrong with positivity (though it’s not my thing), but those lyrics are delusional. The first one even contradicts itself by promising that coming alive will make the world a fantasy, but you can’t go back because your eyes are now wide open. Huh?!

I don’t think such songs of limitless options and rejection of authority are wholesome. They may get the adrenaline going and may become an ear worm, but they set people up for disappointment — even emotional and spiritual shipwreck.

The contrast with our general repertoire is stark. Most of the sacred canon we sing is fundamentally true. This stuff, though, is toxic once you get under the glittery surface. How that toxicity feeds current cultural toxicity is beyond my scope, at least today.

I don’t think I can do this pop stuff any more.

Mourning

Beyond the confines of party politics, the broader left is mourning a narrative: a story about the once and forever conquest of good over evil. It is most visible in the elite hysterics that are derided as ‘woke’. …

… A story about the inevitable triumph of socially liberal values has been deeply entrenched in the minds of the comfortable classes since at least the 1960’s, a simple story about the victory of good over evil. Everyone now knows it was only a story. It never was prophesy. It was, though, a story that helped to structure many middle-class lives, and its passing is genuinely felt, with all the attendant denial and rage. I don’t mourn it. It was never my story. But those that oppose ‘wokery’ without seeing it is a grief-reaction are making the same mistake as those they think are their enemies. They’re clinging on to the wrong story. We are not living through a cinematic battle between good and evil. We are living through a tragedy. Scene by scene, hubris takes from us the very things that we define ourselves by.

The political right at its best, the right of Oakeshott or Chesterton, understood mourning. It had a wistful reverence for what was lost. The right is no longer at its best, and has not been for a long time. The tragedy of our era takes from every player the very thing that they clutch closest to their heart. While it took from the left their faith in the future, it took from the right their faith in the past.

And so we have a Tory party that believes only in Thatcherism; but dare not say so, in case the voters hear. They do not remember that Thatcherism was a betrayal of their party and country. They dare not remember anything at all. They are the very epitome of mourning as denial; and so, amnesiac, they no longer know the land they rule. Their sense of England is no deeper than a photoshoot with a pint glass, and the rest of the Union seldom troubles what is left of their flickering consciousness at all.

…

Every era is a time of mourning, but this era is a time of senseless mourning. The political mourning I have been describing is not the same as the mourning that is quietly embedded in place names and dry stone walls. It is uprooted and lost ….

‌This is a time of senseless mourning, from my favorite new Substack.

The Boromir Fallacy

When people justify their voting choice by its outcome, I always think of The Lord of the Rings. Tolkien emphasizes repeatedly that we cannot make decisions based on the hoped-for result. We can only control the means. If we validate our choice of voting for someone that may not be a good person in the hopes that he or she will use his power to our advantage, we succumb to the fallacy of Boromir, who assumed he too would use the Ring of Power for good. Power cannot be controlled; it enslaves you. To act freely is to acknowledge your limits, to see the journey as a long road that includes dozens of future elections, and to fight against the temptation for power.

Jessica Hooten Wilson, What ‘The Lord of the Rings’ Can Teach Us About U.S. Politics, Christianity and Power

A little sympathy

I have little sympathy for Derek Chauvin, but it seems to me that his cumulative sentences (styling his murder as a federal civil rights offense, too, is likely to add years served) are much higher than would be expected in comparable cases.

Is he being punished more not because of his depravity, but because his murder of George Floyd provoked widespread rioting and exposed the hypocrisy of the government’s selective Covid policies (in effect "Church bad, Riots good", say government epidemiologists)?

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