Political Hay

An Open Letter to Michael Smerconish and Jennifer Stockman

Reaganite radio talker leaves GOP. Lincoln, abortion, and the GOP.

By 2.24.10

Well, so long friend.

Michael Smerconish, longtime Reagan Bushie, a colleague in the days of Jack Kemp's HUD, and now a rock star of Philadelphia talk radio, accomplished author and frequent TV talking head, has unplugged himself from the Republican Party.

The GOP, he insists in a column in the Philadelphia Inquirer that was cross-filed over at the HuffPo, "is a party of exclusion and litmus tests, dominated on social issues by the religious right, with zero discernible outreach by the national party to anyone who doesn't fit neatly within its parameters."

Really? Huh.

Since Smerc (as a mutual late friend of ours was wont to call him) has brought up the subject, we might as well bring in Jennifer Blei Stockman here. Ms. Stockman, the "Chair Emeritus" of the Republican Majority for Choice, appeared on Sean Hannity's TV show the other night as part of Hannity's great Great American Political Panel. Like Michael, Ms. Stockman is pro-choice, and whether they know each other or not, both share some version of the left-wing template here. To wit: the GOP has been consumed by the Religious Right and now is run by a bunch of intolerant crazies who are obsessed with dictating a woman's choices on abortion and can't get over the idea of whether, in Michael's memorable phrase, "two guys hook up."

So OK. Let's do the social issue fox trot here.

The problem, Michael and Jennifer, is not, as each of you have incorrectly structured the argument, simply about abortion. Both of you are purveying the same old false religion about abortion -- and being "pro-choice" is pretty close these days to a secular religion for some.

Are there Americans aplenty who recoil from abortion, and are "pro-life" because of what they believe is the morally right thing to do? Yes indeed. No argument there. Are these Americans limited, to be stereotypical, to the "Religious Right"? No. Since I suppose it's relevant to this conversation, I belong, as readers of this space know, to the United Church of Christ, where I also serve as a church council president and board member of the regional church. The UCC -- at the national level bureaucracy -- is about as far-left as you can get, but our pews are filled with churchgoers of all political faiths and views on those pesky social issues like abortion and same sex-marriage.

Am I personally "pro-life"? Yes. But not, to dust up your stereotype of what this means, simply on the grounds of the abortion issue itself.

A central reason so many conservatives have such strong feelings on this issue is that, plainly put, Roe v. Wade epitomizes precisely the kind of judicial activism that Abraham Lincoln and the founders of the Republican Party so strenuously opposed. In other words, to be even more precise, Michael and Jennifer, to support Roe v. Wade is to support the judicial philosophy that bequeathed Dred Scott v. Sandford (which tried to make slavery a constitutional right), Plessy v. Ferguson (which gave a thumbs up to mandating segregation) and Korematsu v. United States, which blithely gave a nod to the forced internment of Japanese-Americans during World War II.

This being February and not far removed from Lincoln's birthday, let's take a look at his considerable thoughts on this.

On March 6, 1857, the Supreme Court, headed by the slave-owning Democrat Chief Justice Roger Taney, handed down its decision. A decision which, as noted and agreed by all today and most at the time, tried to use the Supreme Court to make slavery a constitutional right.

Three months later, in Springfield, Illinois, Abraham Lincoln rose to deliver a speech addressing the issue specifically. First, Lincoln zeroed in on the 7-2 vote, castigating the fact that "this important decision" had not been made by "unanimous concurrence." The Court had, said Lincoln, made the decision with "apparent partisan bias" and it was "based on assumed historical facts which are not really true."

Within a year, Lincoln famously addressed the issue again in his "House Divided" speech, which he delivered at the close of the Illinois State Republican Convention after being nominated for the United States Senate. What was Lincoln's point in this speech?

Not to re-launch your apparent nightmares about the "Religious Right," Michael and Jennifer, but Old Abe, rascally religious right-wing nut that he was, used as the basis for his speech a verse from the Gospel, specifically Matthew 12:25. 

And Jesus knew their thoughts, and said unto them, Every kingdom divided against itself is brought to desolation; and every city or house divided shall not stand.

What Lincoln was saying in this speech was that the fatal conceit of judicial activism was using judicial fiat to resolve social issues. It not only was unconstitutional but perhaps more importantly ignored the critical nature of building a moral consensus on the social issue in question -- in this case slavery. Political consensus, Lincoln believed, was an important and necessary component in bringing about lasting political change, of settling political conflict. That consensus, of course, in the American system, meant letting the American people decide -- not judges. Decisions reached at the ballot box or in the legislative arena would over time ensure that whatever the political goal, the results would in fact be accepted by the American people. To do otherwise, to do as Chief Justice Taney and his six fellow Court justices were trying to do -- which is to say, substituting their personal views for the rule of law -- would only inflame the situation; exacerbating conflict, not resolving it.

And why did Taney and his fellow slave-owners want so desperately to impose slavery on America by judicial fiat? Because in fact the population and prosperity of the North was on the rise. The North would eventually out-populate the South, becoming politically dominant. If slavery were left to the democratic process, and the American people were given a -- mark this word, Michael and Jennifer -- a choice, Taney was convinced that eventually slavery would inevitably lose out, being rejected by the American people. 

Which is to say, Lincoln's idea of political consensus was so potent a threat to slavery that it was precisely what Taney wanted to avoid -- and thus he removed the possibility of a choice to reject slavery altogether by simply inserting the right to own slaves into the Constitution.

Obviously, the attempt failed. The Civil War erupted. (How's that for a bad reaction to the idea of politicizing the Court?) And when it ended, how did Republicans put an end to the social issue of slavery once and for all? Right. They used Lincoln's approach of building political consensus by taking the issue to the American people and making their case, not just for ending slavery but for the rights of blacks. In succession -- and over opposition from Democrats -- they passed the 13th Amendment (which ended slavery, just as Taney had feared), the 14th Amendment (which provided ex-slaves with due process, again something Taney feared) and the 15th Amendment (which gave blacks the right to vote). Along with the Civil Rights bill of 1866 (which provided equal access to courts, contracts, etc.), the Civil Rights bill of 1871 (which was supposed to protect ex-slaves from the Democrats' latest brain-child, the Ku Klux Klan), and the Civil Rights bill of 1875 (prohibiting discrimination in public accommodations.)

All of which set the stage for the next Roe v. Wade style decision -- Plessy v. Ferguson.

There's no need to rehash any more of this well-known very sad but instructive tale. Plessy borrowed Taney's Dred Scott approach -- and undid what was done through the ballot and the legislative process. Until the 1960s, black Americans spent almost another century in the un-shirted hell of racism and segregation, courtesy of judicial activism. Ditto Japanese-Americans being dragged from their homes, on the purest of racial grounds, in absolute violation of their Fifth Amendment rights.

Roe v. Wade is no longer a fresh topic. It's been on the books since 1973, and as Lincoln could easily have predicted, it has done nothing to build political consensus on the abortion issue. It has, to the contrary, been savagely divisive, producing (just as Plessy did) an endless stream of vitriolic debate seasoned with violence. It has numbingly divided Americans with the labels of "pro-choice" and "pro-life." It has served, Michael, as an instrument to thwart two Pennsylvania Governors with national ambitions: the Democrats Bob Casey, Sr., who was forbidden to even discuss his pro-life views at the Democrats' 1992 convention; and Republican Tom Ridge, whose pro-choice views surely played a role in keeping him off the McCain ticket in 2008 (ditto with Connecticut's Senator Joe Lieberman).

At some point, one has to ask, when is enough enough?

Michael and Jennifer, the ultimate irony in your views is the use of the term "pro-choice." To be "pro-choice" is in fact to be "anti-choice." In the spirit of Roger Taney and those slavery sympathizers of old, you are both apparently strong supporters of a judicial philosophy that is expressly designed to circumvent the real choices the American people wish to make -- whatever those choices on abortion (or same-sex marriage) may turn out to be. It can only seem to others that your insistence on keeping Roe in place is because, like Roger Taney, you fear that the American people would reject your views at the ballot box.

Abandoning Mr. Lincoln's wisdom and the core principles he supported -- principles of building political consensus at the ballot box and through the legislative process -- has proved to be a recipe for 37 years of disaster. In short, Michael and Jennifer, America has done it your way -- and your way has failed. Miserably. Surely it is no coincidence that just like Dred Scott v. Sandford, which was decided by a 7-2 vote, Roe v. Wade, was also decided by an identical 7-2 vote. The terms Lincoln used to oppose the 7-2 vote of Dred Scott in 1857 are just as applicable to the Roe 7-2 vote of 1973 -- both were "important decisions" reached without "unanimous concurrence." Both effectively settled nothing and made things worse -- much worse.

No one here begrudges either of you your personal views on abortion. But the judicial philosophy you both embrace, Michael to the extent of departing the GOP over its refusal to acquiesce in gutting what is literally a founding principle of the party and one of its celebrated Founder's most significant (not to mention wise) principles, is, I must say, astonishing. And Jennifer, again, no one begrudges you your views on abortion either -- but it is equally astonishing that you and your group would so fiercely embrace the core principles of Roger Taney and the slave-owning, and later segregationist-minded, judicial philosophy he championed. Respectfully, it is never a good idea to be terrified of facing voters over a significant issue just because you are afraid you will lose.

So Michael. You are a great guy. A good human being. A man of considerable talent who, even though I'd apparently find myself yelling at the set on occasion, should have his own TV show. And Jennifer, I have fond memories of husband Dave the whiz-kid Congressman and wish you both well.

But this is surely the most incredibly wrong way to go, and I'm sorry that Michael has said a "hasta la vista" to the Party of Lincoln -- and Reagan.

There is nothing "extremist" in supporting Abraham Lincoln's core principles, although I suppose it could certainly be seen as what you call a "strict ideological agenda." There is nothing wrong with Lincoln's insistence that social issues like slavery, basic human rights, the right to vote for blacks in the 1860s or women in the 1900s, the right to eat in a restaurant or drink out of a fountain -- or today the right to have or not have an abortion, to marry a member of the same sex or not -- must be solved in the political arena to build the moral consensus that will give the resulting decision a firm foundation.

Perhaps the most eloquent answer to your collective views on these social issues and how they have been decided and how some today (ahem!) wish to keep deciding them came from Justice Benjamin Curtis, one of the two dissenters in Dred Scott v. Sandford.

Political reasons have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.

Two last thoughts.

Abandon the inclusivity of involving the American people in such important decisions? Deliberately working to exclude them in favor of divisive, split Supreme Court decisions rendered by judges with a political axe to grind?

Denying Americans choice on the issue of abortion? Or gay marriage?

Not good.

Abandon Mr. Lincoln? 

Jack Kemp would not approve.

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About the Author
Jeffrey Lord is a former Reagan White House political director, an author, and a CNN commentator. He writes from Pennsylvania at jlpa1@aol.com and @Jeffjlpa1.