Slavery was once both legal and immoral, much as abortion is today. The Dred Scott decision was overturned because it was both bad jurisprudence and immoral—just like Roe v. Wade.
In supporting the Dred Scott decision, the candidate for president, Stephen Douglas, argued that he didn’t care whether slavery was voted up or voted down. He only cared for the right of the people to decide.
Essentially, that’s Rudy Giuliani’s argument with regard to abortion. He is personally opposed to it, but he supports a woman’s right to choose because it is the law of the land.
I wonder if Rudy worked to legalize abortion before Roe? If he was in favor of abortion rights before Roe, while even then being personally opposed to the act of abortion, then we have further light on his value system.
But, if he was against abortion before Roe, why?—and on what grounds did he oppose it then? And what changed when Roe v. Wade was handed down? This eliminates the “it’s legal therefore I must support it” maneuver.
Imagine a person saying, “I’m personally opposed to slavery, but if somebody else wants to own slaves, then I’ll support their right to do so.” Or, “I’m personally opposed to slavery, but if a state were to vote to legalize it, who am I to oppose their sovereign legal right to do so?”
This is essentially saying “that which is legal trumps that which is moral”—a statement that is itself immoral.
In the course of the famous Lincoln-Douglas debates, Stephen Douglas stated, “We in Illinois … tried slavery, kept it up for 12 years, and finding that it was not profitable we abolished it for that reason.”
To which Lincoln replied, “[Judge Douglas] says he ‘don’t care’ whether [slavery] is voted up or voted down in the Territories…. Any man can say that who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he don't care whether a wrong is voted up or voted down.”
Lincoln would be asking Rudy today, “If you are personally against abortion because it is wrong, then how can you say you don’t care whether it is upheld or overturned? No man can logically say he don't care whether a wrong is voted up or voted down.”
At the core of this debate is whether we believe there could ever be such a thing as an immoral law. The belief that there is no such thing as an immoral law is held by intellectually honest secularists who reject any notion of a transcendent moral law or natural law. Consistent secularists believe only in man-made “positive law”—law that is determined simply by the will of lawmakers (not grounded in anything transcendent). By definition, then, majorities are always morally right. Abortion today, like slavery once was, is moral simply because it is legal. Majorities create rights and determine morality by passing laws.
If you believe there can be immoral laws, then your moral faculties are functioning properly. You understand majorities have often passed immoral laws. You understand the legal and the moral are two different things. Perhaps you’re familiar with Plato’s Laws and the distinction between the good citizen and the good man—the former does that which is good in his own city, the latter does that which is good in every city. In fact, what makes a city good is if the good man can also be a good citizen, and if so, then the city has good laws.
America should strive to be a good city, composed of good men (and women), with good laws. Twenty-five centuries of Western thought have taught us that the right course of conduct in both public and private is for the moral to inform and shape the legal.
Lincoln, knew this. Douglas did not. Apparently, neither does Rudy.