Inflection Points for Movement Conservatism: Part 2 – Respecting Dobbs

It’s difficult to consider anyone as a member of movement conservatism who can’t at least appreciate the constitutional propriety of Dobbs v. Jackson.

Yesterday in part 1 of this series, I laid out the case that while movement conservatism has room for many different emphases in the American tradition, it is defined by more than the simple instinct to conserve tradition. It is rooted in valuing American history, western culture, and the written and unwritten precepts of American constitutionalism. American conservatism is a philosophy that encapsulates various ideologies, traditions, and views on government, culture, and society. Still, it nevertheless has boundaries beyond which activists, intellectuals, and political figures depart from belonging to the conservative project. 

I also pointed out that the conservative movement in its present state has ceased to operate as a coherent political project. And the timing for this dysfunction couldn’t be worse. America needs a conservative vision, and it needs a healthy movement to champion that vision. Beating Democrats at the ballot is simply not enough. We have work to do in order to accomplish the broad goal of conserving and restoring the founding vision.  

Those committed to such an American restoration, then, must do all in their power to rebuild the conservative project. To accomplish this, we must first reassemble the splintered coalition that traditionally composed a salient conservative movement. And this cannot have a chance of success without patrolling the borders of that coalition. We must hedge in the margins. Today, in part 2 of this series, I’m going to address one of the present inflection points that can help us to accomplish this. 

Several weeks ago, I argued that the Supreme Court’s decision in Dobbs v. Jackson represented the culmination and second-wind of a religious great awakening and philosophical enlightenment, and that the historical ruling deserved far more celebration and optimism than it was getting. 

Unsurprisingly, I observed the typical pushback from the progressive-minded. Abortionists and their enablers have never been willing to concede that the question of the dignity and value of human life should be given at least due consideration next to the question of women’s privacy. Nor will they ever budge from the extra-constitutional view that the courts could create a fundamental right ex nihilo (a fundamental right must either be expressly enumerated or broadly recognized in the traditions of natural law or national history). 

What did surprise me was the pushback from a group of people still calling themselves conservative. The various arguments against the Dobbs decision coming from anti-Trumpists (who claim to be the last refuge of virtue and principle on the Right) were shocking and even a little jarring. Many of these folks were tying themselves in intellectual and philosophical knots to argue, among other things, that the Dobbs decision wasn’t conservative at all, nor was the pro-life movement, and that, in fact, the efforts to overturn Roe v. Wade were hypocritical in the extreme because the current originalist majority on the Supreme Court has engaged in judicial activism to achieve this end.  

Now, don’t get me wrong. I am personally pretty dang close to being an abortion abolitionist, but I recognize that I am very much in the minority, even among conservatives. I acknowledge that the laws we end up crafting at the state level will require prudence and a balancing of concerns. For however much I believe we shouldn’t play fast and loose with the powers of life and death and that we should err on the side of extreme caution when it comes to the question of when life begins, I am willing to concede that very, very few people are comfortable with a total ban of abortive acts. And I am also willing to recognize that the pro-life position, even generally defined, is not and should not be an absolute shibboleth of the conservative project. 

However, what are hard and fastened aspects of the conservative project are commitments to renewing the founding vision, the rule of law, the constitutional order, and the proper processes of government. Those who cannot concede that Roe v. Wade made a mockery of these principles and who cannot, at least, celebrate the constitutional propriety of the Dobbs decision and the ways it’s setting the constitutional order aright have great difficulty, in my view, of claiming to be a part of the conservative project. 

Conservatism is much more than a soulless pragmatism that’s afraid or unwilling to disrupt the status quo even when timeless principles and values call for restoring lost and trampled precepts. Consequentialism is beyond the boundaries of the conservative project. At the very root of the founding vision is John Adam’s assertion that a republic must be “a nation of laws, not men.” Proper process, constitutional propriety, the rule of law, and equal justice are core to what American conservatism has long tried to conserve and restore.  

If we believe in a form of government where the courts exercise judgment and not will, interpret the Constitution rather than transform it, and identify protected rights from explicit enumeration or demonstrable historical tradition rather than philosophize on new cultural developments, then we must admit a commitment to holding to those precepts in all cases.  

If, today, I were to dramatically shift my views on abortion and become the most ardent pro-choice activist in the nation but maintain my current sense of constitutional propriety, I would still celebrate Dobbs. Why? Because the courts should have never assumed for themselves the power to settle such a question. If a right is not enumerated in the Constitution, clearly derived from its inferences, or demonstrated in the history of American society or natural law, then the issue belongs to the people.  

If I were to become an ardent abortionist but remain a stalwart constitutionalist, I would understand my efforts do not properly belong in pleading for the courts’ intercession. Instead, I would apply all my efforts towards establishing state law reflecting my stance and working slowly and methodically toward the consensus necessary to amend the Constitution.

This is why the inability to celebrate Dobbs, the dismissiveness towards those celebrating Dobbs, and the failure to understand why the effort that culminated in Dobbs reflects one of the most significant conservative victories in modern American history is a clear inflection point.  

Again, I’m not saying you have to be pro-life to be conservative. I’m not even saying you have to be ardently pro-Dobbs. What I am saying is that if you reject Dobbs and you cling, even pragmatically, to the thought processes behind Roe, then your case for belonging to movement conservative is very poor, to say the least. 

The conservative project is chiefly concerned with putting the various branches and levels of government back within their constitutional boundaries. Roe v. Wade is an example of not one but two violations of the constitutional order. It was never the court’s place to attempt to settle the question of abortion, and, absent clear consensus among the people, the question is the proper purview of the states.  

Dobbs represents one of the rare moments not only in American history but in human history when an institution of government voluntarily surrendered a power it had previously usurped. Those who fail to see Dobbs as a victory, hesitate to appreciate its positive impact on the constitutional order, or are unwilling to concede its constitutional propriety have arrived at the hinterlands of American conservativism. Those who apologize for or make common cause with those who reject the results of legitimate government processes and sound jurisprudence have abandoned the conservative project altogether. 

Read Part 3 here.