Speaking of Michael Stokes Paulsen, he contributed a dissent to What Roe Should Have Said. Although the opinion betrays a sense of humor (the first footnote notes that Justice Balkin appointing the other members of the Court violates Article II of the Constitution), it provides the undiluted, fire-and-brimstone critique of Roe, complete with appended pictures of fetuses. His argument makes two familiar points: 1)Roe has no constitutional basis, and 2)because abortion “kills a human life” states are almost certainly required to ban abortion in most circumstances. On the first point I’ve already written a great deal, so I will note only that needless to say he returns in this case to the narrowly textualist, historically concrete originalism he abandons to justify Brown v. Board.
On the second point, I actually have some measure of admiration for Paulsen’s opinion, which is rare among pro-lifers for actually applying its underlying passage consistently. Many people will object to this passage near the end, where he calls out the other mock-justices:
Jack Balkin is a man of violence. [Repeat, with appropriate gender substitutions, for five others, ironically including Jed Rubenfeld.]
Cass Sunstein is a man of violence (once case at a time.)
Ahkil Amar is a coward and a collaborator.(213)
In a strange error, Paulsen invokes the great legal theorist Robert Cover–who was apparently his mentor–to justify the language. This is an obvious misreading that leads one to question Paulsen’s grasp on the material. The point of Cover’s astonishing essay “Violence and the Word” is that calling a judge a person of “violence” is a tautology: judges–the justifiers of state violence–are, by definition, people of violence in Cover’s terms. (“Legal interpretation,” Cover reminds us, “takes place in a field of pain and death.” This is not merely true of judges who disagree with Paulsen about the constitutionality of abortion rights or who uphold death sentences. We do not, as Cover says, “talk our prisoners into jail.”) And it certainly applies to Paulsen, who would mobilize state violence against those who perform and obtain abortions. I do not, however, object to Paulsen’s tone, which is commensurate with his stated principles. And I also respect him for being open about the consequences of what he’s proposing: unlike so many (see especially Patterico in comments), he is open that the belief that fetuses are Constitutional persons–which, I remind readers, it currently the stated plank of the party that controls all three branches of the federal government–would require–not permit, but require–states to treat abortion like first degree murder.
On this point, however, it must also be emphasized how radical this position is–pro-lifers avoid the implications of their alleged theories of human life for good reason. Paulsen says that “it is hard for me to accept that men and women I otherwise respect…embrace constitutionalized private mass murder.” It’s worth considering that this is true not only of Jack Balkin and John Paul Stevens, but also of Antonin Scalia and Clarence Thomas. After all, Scalia claims, in an opinion joined by Thomas, that “[t]he States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. (212)” Particularly given how ineffective criminalization–let alone piecemeal criminalization in which affluent women need merely cross state lines to obtain abortions–is at reducing abortion rates–is in practice, to argue about whether Scalia or Stevens is the greater “man of violence” is like arguing about whether Hitler or Stalin is worse.
I remain confident that Paulsen’s positions, while worthy of more respect than most pro-life positions, will remain confined to a tiny minority. Applying his premises consistently is to make their implausiblity transparent.