Webster supported the Compromise of 1850, which attempted to settle the question of slavery in the territories acquired from Mexico by admitting California as a free state and Utah and New Mexico "with or without slavery as their constitution may provide at the time of their admission." This last principle was seized upon by Stephen A. Douglas, the "little giant" of the Democratic Party, and made the basis of the Kansas-Nebraska Act, which Douglas pushed through Congress in 1854. Nullifying the Missouri Compromise of 1820, it opened the remaining territories to slavery if the people in them voted for it. Douglas's rationale was "popular sovereignty," a logical extension of states' rights. The premise of states' rights was that any institution a state wanted to have, it should have, so long as that didn't conflict with the Constitution. Since slavery not only did not conflict with the Constitution but was protected by it, Douglas said, it followed that each state had "a right to do as it pleases on the subject of slavery," and the same principle should apply to the territories. Douglas's appeal was not to the fiery pro-slavery minorities in the South, who insisted that slavery was morally right, but to the vast majority in the North, who simply felt uncomfortable talking about the subject. He assured them that they didn't have to—that they could avoid the subject altogether by leaving it to the democratic process. Let the people decide: if they "want slavery, they shall have it; if they prohibit slavery, it shall be prohibited." But what about the rights of slaves? That, Douglas said, was one of those issues that should be left to moralists and theologians. It did not belong in the political or legal realm. In speaking of the right to own slaves, he said,
I am now speaking of rights under the Constitution, and not of moral or religious rights. I do not discuss the morals of the people of Missouri, but let them settle that matter for themselves. I hold that the people of the slaveholding States are civilized men as well as ourselves, that they bear consciences as well as we, and that they are accountable to God and their posterity and not to us. It is for them to decide therefore the moral and religious right of the slavery question for themselves within their own limits.
Looking back today on Douglas's words, now 137 years old, one is struck by how sophisticated and "modern" they seem. He ruled out of order any debate on the morality of slavery. That was a "religious" question. It had no place in a constitutional debate, and we had no right to judge other people in such terms. In one of his debates with Lincoln in 1858, Douglas scolded his opponent for telling the people in the slave states that their institution violated the law of God. "Better for him," he said, to cheers and applause, "to adopt the doctrine of `judge not lest ye be judged.'"
The same notions and even some of the same language have found their way into the abortion debate. In Roe v. Wade, in 1973, Justice Harry Blackmun observed that philosophers and theologians have been arguing about abortion for centuries without reaching any firm conclusions about its morality. All "seemingly absolute convictions" about it are primarily the products of subjective factors such as one's philosophy, religious training, and "attitudes toward life and family and their values." As justices, he said, he and his colleagues were required to put aside all such subjective considerations and "resolve the issue by constitutional measurement free of emotion and of predilection." As the abortion debate intensified, particularly after Catholic bishops and Christian evangelicals entered the fray in the 1970s, the word "religious" was increasingly used by abortion defenders to characterize their opponents. They used it in exactly the same sense that Douglas used it in the slavery debate, as a synonym for "subjective," "personal," and thus, finally, "arbitrary." In this view, religion is largely a matter of taste, and to impose one's taste upon another is not only repressive but also irrational. This seems to be the view of the philosopher Ronald Dworkin in his book Life's Dominion (1993) and in some of his subsequent writings. What the opposition to abortion boils down to, Dworkin says, is an attempt "to impose a controversial view on an essentially religious issue on people who reject it."
The approach has served as useful cover for Democratic politicians seeking to reconcile their religious convictions with their party's platform and ideology. The most highly publicized use of the "religious" model was the famous speech given by Mario Cuomo, then the governor of New York, at the University of Notre Dame during the 1984 presidential campaign. Characterizing himself as an "old-fashioned" Catholic, Cuomo said that he accepted his Church's position on abortion, just as he accepted its position on birth control and divorce. But, he asked rhetorically, "must I insist you do?" By linking abortion with divorce and birth control, Cuomo put it in the category of Church doctrines that are meant to apply only to Catholics. Everyone agrees that it would be highly presumptuous for a Catholic politician to seek to prevent non-Catholics from practicing birth control or getting a divorce. But the pro-life argument has always been that abortion is different from birth control and divorce, because it involves a nonconsenting party—the unborn child. At one point in his speech Cuomo seemed to acknowledge that distinction. "As Catholics," he said, "my wife and I were enjoined never to use abortion to destroy the life we created, and we never have," and he added that "a fetus is different from an appendix or a set of tonsils." But then, as if suddenly recognizing where this line of reasoning might lead, he said, "But not everyone in our society agrees with me and Matilda." In other words, it was just a thought—don't bother with it if you don't agree. De gustibus non est disputandum.
Cuomo's speech received considerable press coverage, because it was perceived as a kind of thumb in the eye of New York's Cardinal John O'Connor, who had been stressing the Church's unequivocal moral condemnation of abortion. The argument, then, was newsworthy but not at all original. New York Senator Daniel Patrick Moynihan, another pro-choice Catholic, had been saying much the same thing since the mid-1970s, and by the 1980s it had become the standard argument. One hears today from the Clintons, from spokespeople for the American Civil Liberties Union, and from the philosopher Ronald Dworkin, the journalist Roger Rosenblatt, and the celebrity lawyer Alan Dershowitz, and from legions of others that opposition to abortion is essentially religious, or private, and as such has no place in the political realm. There is a patient philosophical response to this argument, which others have spelled out at some length, but it finds no purchase in a mass media that thrives on sound bites. There is also a primal scream—"Murder!"—that is always welcomed by the media as evidence of pro-life fanaticism. But is there a proper rhetorical response, a response suited to civil dialogue that combines reason with anger and urgency? I believe there is, and the model for it is Abraham Lincoln's response to Stephen Douglas.