James Wilson Institute Fellow Spotlight
1. How has the James Wilson Fellowship impacted your thinking and legal career? What were your favorite parts of the fellowship? On what topics has the Fellowship brought you more clarity?
I appreciated the way that the James Wilson Fellowship constantly called us back to first principles of the regime and the natural law. Our opening discussion of Book I of the Politics and the Lincoln-Douglas debates truly set the tone for the rest of the week. I greatly respect Professor Arkes’s arguments regarding the Free Speech Clause and the Free Exercise Clause, in part because I think he is keeping the conservative legal establishment unavoidably aware of the danger of creeping moral relativism. Of course, in addition to the great faculty, the James Wilson Fellowship brings together an accomplished group of young lawyers together for unforgettable discussions and lasting friendships.
2. In 2017 you published a paper in the Harvard Journal of Law & Public Policy about the Fourteenth Amendment’s protections for unborn persons. It is now one of the most downloaded constitutional law papers on SSRN, and you recently produced a video with Live Action summarizing your findings. What kind of responses have there been to your research?
My article argues that the original public meaning of the Fourteenth Amendment guarantees due process and equal protection of the laws to all members of the human family within the United States—including the unborn. That argument draws on three lines of evidence: (1) dictionaries of common and legal usage at the time of the Fourteenth Amendment’s adoption, (2) centuries of common law precedent and state practice leading up to 1868 prohibiting abortion as soon as life could be detected, and (3) statements by the authors of the Fourteenth Amendment that show the Amendment’s original expected application was to extend to every human being—especially the weakest and most marginalized.
The reaction so far has been tremendous. I’ve been pleased to see the argument picked up in amicus briefs before the Supreme Court and in the media. The video produced with Live Action will help bring this argument to an even wider audience.
3. Why did Live Action reach out to you about producing a video on this topic? What misconceptions about the constitutional case against abortion remain?
Live Action wanted to respond to the common claim that “abortion is a constitutional right,” and I was happy to share my argument showing that there is no legal basis for the claim that abortion is a constitutional right. Even some opponents of abortion argue that the issue should simply be returned to the states so that voters can decide the question through the democratic process. But in fact, contrary to popular belief, a proper interpretation of the Fourteenth Amendment indicates that no state can constitutionally permit abortion.
This constitutional conclusion calls to mind some of the deeper themes of natural law and political theory discussed during the James Wilson Fellowship. It reminds me of Lincoln’s point in the Lincoln-Douglas debates that there can be no “right to do a wrong.” The view that abortion should simply be returned to the states and put to a democratic vote is worrisomely reminiscent of Stephen Douglas’s advocacy of “popular sovereignty” to determine whether states could enslave African-Americans.
4. You recently wrote in the National Review that the contemporary abortion debate reflects the antebellum slavery debates in other ways as well. Can you explain that?
Advocates of legalized abortion have long claimed that nobody celebrates abortion and that abortion should be “safe, legal, and rare.” But they’ve now shifted to “abortion on demand and without apology,” and increasingly defend abortion as a positive good rather than as a tragic necessity.
My article compared the Democratic party’s new defense of abortion on grounds of morality rather than necessity to the transformation in Southern views on slavery between the late 18th and early 19th centuries. Between 1776 and the Civil War, slavery’s defenders shifted their position and rhetoric until slavery became, “instead of an evil,” in the words of John C. Calhoun, “a good — a positive good.”
Of course, the radical position that abortion is actually a positive good is incompatible with the American creed, just as Calhoun’s claim about slavery was incompatible with that creed. American republicanism presupposes the existence of natural and unalienable rights, which human beings possess simply by virtue of being human. Abortion, like slavery before it, can flourish only so long as some members of the human family are considered outside the moral community of persons.
5. What do you plan to write about next?
I’m fascinated by Shakespeare’s political thought as revealed through his plays. I’m currently working on a series of essays that puts the Bard in conversation with pillars of American legal and political thought, including the Founders, Publius, Alexis de Tocqueville, and Abraham Lincoln. By identifying areas of agreement and divergence between these sources, I hope to distill principles from Shakespeare’s plays that have continuing relevance to the American political experiment and the future of the regime.
Take Merchant of Venice, for example. Shakespeare offers profound insight as to whether or not commercial values alone are sufficient to sustain civic virtue. I think he suggests that John Adams was correct to contend that a republican constitution is “made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Indeed, by examining the character of the Venetian regime and the irreconcilable differences between its citizens regarding the nature of the Good, the attentive reader can identify barriers to civic friendship and evaluate whether law can serve as a mediating influence against faction. All of these themes find their echoes in American political thought and are directly relevant to the challenges we face today.