The law should reflect the biological truth that human embryos are living human organisms and the moral truth that as such they count as persons who deserve protection against deliberate homicide.
But the way to put those truths into law is not to pass a law that says life begins at conception, and leave it at that. Legislation has to go into how that principle will be enforced, too. That’s the problem, I write in the Washington Post, with the “personhood laws” that some pro-lifers have sought to enact: Either they end up being entirely toothless, like the federal “personhood” bill, or they hide their consequences from legislators and voters.
Personhood laws . . . attempt a maneuver that social conservatives rightly opposed in the case of the Equal Rights Amendment: get the law to endorse an abstract principle so that someone, probably the courts, can later draw out policy implications that voters and legislators would not have supported. People who would never have endorsed drafting women into the military — one of the leading anti-ERA scenarios in the 1970s — would wake up one day to find they had signed on without realizing it.
The invitation of personhood laws is the same: Put this into the legal code, and then we’ll all find out what it means together. Or find out what the executive and judicial branches can make it mean.
In writing the column, I considered but chose not to go into one possible objection: that constitutions often, rightly and even necessarily, include vague phrases — “majestic generalities,” as the Supreme Court put it in 1943 — that become clearer in their meaning over time.
Roughly since the Court said that, we have become conditioned to think about constitutions and their interpretation in that way, to the detriment of both self-government and, often, good government. But many of what appear to be majestic generalities turn out, once the work of historical recovery is done, to have more concrete meaning than apparent to the first glance of the modern reader. Historical work on the meaning of the due-process clauses and the equal-protection clause offers cases in point. When most of the Constitution’s provisions were drafted, ambiguity was not considered to be a grant of judicial power to fix the meaning. To the extent that it is so considered today, it’s an additional reason to be wary of vagueness in constitutional amendments.