When the draft notice disclosed in Dobbs v. Jackson Women’s Health Organization came out suggesting the Supreme Court was ready to overturn Roe vs. Wade one of my students said, “Since I personally don’t believe in abortion, that’s fine with me.
There is something disturbing in this statement. It illustrates the disappearance of the art of tolerance which was once the hallmark of a liberal society. And that’s a big part of what’s wrong with it Dobbs majority opinion and the efforts of others to prohibit abortion or restrict the personal freedoms or ideas of others. It is also a symbol of the larger problem with the conservative and religious right in America.
The United States is supposed to be a liberal society. A liberal society is indebted to political ideas and values that date back to 17th century British political philosopher John Locke as well as Thomas Jefferson and the Founding Fathers who signed the Declaration of Independence, the Constitution and the Bill of Rights. It is a secular view of society where the government must respect individual moral choices, choosing to be neutral about how its citizens define their vision of a good life for themselves. It is also a tradition attached to the idea of tolerance – the idea that I cannot impose my personal moral choices on others and that I must allow ideas and choices to be made by others, even if I hate them.
The concept of tolerance is a modern Western European invention, born out of the exhaustion of religious civil wars and the split between the Catholic Church and Protestants in the 16th century. by John Milton Areopagitic, in arguing against the right of a religious sect to use government power to censor books, said that perhaps no one but God knows what the truth is and that banning the books could well be the prohibition of truth. by John Locke A Letter Regarding Tolerance stipulates that no group has the right to impose its views on another. And John Stuart Mill’s classic on freedom states that the truth of an idea is to be found in how it faces the challenges of its rivals and that society has no authority over the private domain or the choices people make if they do not affect others. These ideas here represent the heart of the idea of tolerance.
Liberal tolerance was born out of the fear that a government that did not respect the separation of church and state would be free to define orthodoxy, to impose on dissenters, critics and non-believers their vision truth in the name of God. The French Edict of Nantes of 1598 recognized the right of Protestants to believe what they want. British King James II and the Glorious Revolution of 1688 were about religious tolerance. All of these historical events testify to a growing recognition in the West that the church should be separate from the state, that individuals should be free in what they believe, and that there are limits to orthodoxy and what a majority can force a minority to believe or do.
The hallmark of a modern liberal society such as the United States is meant to balance majority rule with minority rights. James Madison states that this is the case in his Federalist Paper number 10. Alexis DeTocqueville Democracy in America fears the tyranny of the majority, and the purpose of the Constitution and Bill of Rights is to maintain government neutrality regarding personal moral choices and to set limits on what majorities can impose on individuals.
Perhaps the best expression of the concept of tolerance is found in West Virginia v Barnette. Justice Jackson, writing for the Supreme Court striking down a mandatory public school oath of allegiance law, said: “If there is a fixed star in our constitutional constellation, it is that no public servant , high or low, cannot prescribe what should be orthodox. in politics, nationalism, religion or other matters of opinion or forcing citizens to avow by word or action their faith.
The point here is that there are limits to what political majorities can or should be allowed to do to others. You can believe what you want, but you cannot use the force of law to enforce your beliefs in the law. We have the right to have our own opinion, but we cannot impose it on others.
It is this notion of tolerance that Judge Alito seemed to forget when he drafted the opinion in Dobbs to spill Roe vs. Wade. There, he said abortion was such a controversial decision that it should therefore be decided by state lawmakers and voters. This is utterly false and avoids a sense of intolerance for difference which is supposed to be the hallmark of a liberal society.
Again quoting Judge Jackson of Barrette: “The right to life, liberty and property, freedom of expression, freedom of the press, freedom of worship and assembly and other fundamental rights cannot be put to the vote ; they depend on the outcome of the absence of elections.
How can I expect my students or our society to be tolerant if the Supreme Court doesn’t understand the concept?