Julian Sanchez header image 2

photos by Lara Shipley

Extreme Neutrality

August 9th, 2005 · No Comments

As long as I’m taking shots at the National Review crowd, let me say that this attack by Armando at Daily Kos on one of their guys seems misplaced. NR‘s Ed Whelan wants to argue that the Constituion is “neutral” vis a vis abortion—by which he means that it leaves it to the states to permit or forbid it as they please.

Armando objects that this view, attributed to folks like Scalia, is not “netural” but “extremist.” But, of course, those two things aren’t mutually exclusive at all. The idea that the government should be neutral on some topic may indeed be “extremist” relative to the mainstream of opinion at a given time, either because the overwhelming majority of people think government should actively promote X or actively forbid it. (Or, more appropriate in this context: Some people think the federal government should require all states to forbid X, while others think it should prevent any state from forbidding X.)

Now, as someone who’s about as strongly pro-choice as you can get, I’m very much in favor of the outcome of Roe (abortion legal in all states), and agnostic on the question of whether Roe was well-decided from a legal perspecive. So let’s take the question of religous establishment. You can imagine a case where there’s federal establishment, such that all states are required to enforce some one (or perhaps one of a few) kind of denominational worship. Then there’s the view some conservatives take: That the Establishment Clause should be read to permit each state to establish its own church or not as it decides. And then there’s the currently prevalent view, that it should be seen as preventing any state from establishing a religion. Now, I think it’s fair to describe the second view there as one of Constitutional neutrality on the question of state level religious establishment. As a partisan of the third view, I certainly regard that one as dangerously wrong, and it’s surely also an extremist view these days, insofar as it’s only very conservative outlier judges who hold it. But it’s still a view that takes a federally “neutral” stance toward state establishment. Sometimes neutrality is a bad thing, after all: Sometimes the Constitution takes sides. But it’s still neutrality.

Tags: Language and Literature