Phoenix — They continue to celebrate Barry Goldwater. An Institute, now 16 years old, gets in speakers, most of whom reflect on the achievements of their favorite son. Goldwater was an enormously accomplished man, indulgent of life’s amenities and challenged by its perversities. He attracted an extra-political following by cultivating pursuits not easily done by those more timorous than he. He inclined to do that which was risky, including national politics, and he emerged in the early 1960s as spokesman for the conservative wing of the Republican party. A question arose at the Goldwater Institute’s proceedings last week when the speaker dwelled, for a few moments, on the later Goldwater. The story is as follows:
A few years before his death in 1998, Goldwater started taking positions different from those of the conservative constituency at large. Conspicuous here was his defense of Supreme Court decisions involving abortion, gay rights, and the separation of church and state. Most followers of the senator were surprised, and abashed, especially at his defense of abortion. What emerged as a question, at the meeting in Phoenix, was whether his abortion position was owing to judicial ultramontanism, or to his general devotion to individual rights. It is not challenged that Goldwater defended abortion as though it were a closed issue, closed in the sense that the Supreme Court had ruled, in Roe v. Wade, that abortion was a constitutional right.
By one line of reasoning, a woman has the right to do what she chooses with her own body. That position can be taken, and was taken before Roe v. Wade came into town, by many who defended the right to abort. What the Supreme Court contributed was a constitutional validation. If abortion is a “right,” then perhaps the people who exercise that right are no more contumacious than people who write articles and take political positions. That would be a fundamentalist view of human rights, and there are those who believe that Senator Goldwater, when he affirmed the right to abort, was doing nothing more merely than affirming the exercise of human rights in general.
Other analysts believe that the senator was fooled by the respect he felt for the Supreme Court. Since the Court had ruled that abortion was okay, what more argument was there to dwell upon?
There is, of course, the difficulty that the Supreme Court is capable of judgments which, on reflection, observers are free to question, and even to oppose. The overriding question being, of course, whether in the exercise of a “right,” the right of someone else has been transgressed upon. In this case, obviously, the right of the unborn child. If the child has a right, surely it is to live. Therefore, to end his life is to go beyond the plausible limits of the mother’s right.
There were two responses to the Court in the Dred Scott decision. One of them can be characterized, roughly, as Lincoln’s. What he said, pure and simple, was that the Court had reasoned incorrectly. The slave was not “property” in the conventional sense. If so, then an owner who wished to transport that slave to another state or territory, where slavery was not institutionalized, could not do so without imperiling his title to the property.
Others defended the decision, sometimes for political reasons — states rights was a sundering national issue. Therefore great relief was wrought by the positive reasoning: If the Court said it’s okay, then it’s okay.
One visitor to Phoenix recalled that Senator McGovern, during his campaign for the presidency, was asked his views on busing. He replied, “The Supreme Court has not yet ruled on the question.”
Which was true, but which did not answer the question: What were the senator’s views on busing?
On abortion, the views of some, pre-Roe and post-Roe, were that no judicial reasoning can validate the expression of freedom when it is invoked in order to obliterate another human life.
Was Senator Goldwater acting as a constitutional exegete? Or was he reasoning for himself that the right of the unborn child was irrelevant? The question was not answered, but Goldwater’s memory had provoked curiosity on the matter, and it is reassuring that how Goldwater thought on a great public question continues to concern thoughtful conservatives.