Legal Legitimacy and Abortion Politics

I didn't get a chance to blog on this before I left, but I want to now plug this post by Leon H. Wolf on how law gains legitimacy in the public eye, and what the implications of having it (or not having it) are. Wolf specifically examines the question of abortion.

One of the crucial problems with the abortion debate is that both sides consider themselves to be fighting for sacred principles. Pro-lifers think that abortion is murder (in which case allowing it is tantamount to consent to murder). Pro-choicers think that being able to have an abortion is crucial to women being full members of the social community--without it they are second-class citizens, slaves to their ovaries. I've always thought that the normative case for overruling Roe v. Wade and then "letting the states decide" made little normative sense: the only way abortion is not clearly a woman's right is if it's murder, and I think a few constitutional clauses would pose a barrier to a state deciding to simply legalize the slaughter of innocents.

But Wolf articulates a pragmatic reason for sending abortion back to the states:

Whatever one might say about the process which gave us the rules encapsulated in decisions like Loving or Lawrence, it can hardly be doubted that the American public, almost as a unified whole, accepts the principles contained therein as legitimate. In the thirty-three years since Roe, no such mellowing has occurred - no legitimacy has been obtained - the debate is as rancorous as it ever was, and more so. Ugliness lies on the horizon.
[...]

[quoting Paul H. Robinson and John M. Darley] [A] number of studies... suggest that the level of commitment to obey the law is proportional to what Tyler calls the law's perceived "legitimacy," by which he means a community's perceptions that, first, the law instantiates their moral beliefs, and, second, that the law came into being via fair procedures conducted by the appropriate authorities. [end quote]

[...]
Presently, this feeling is lacking on the part of pro-lifers - who don't feel yet that this is an issue they have lost by legitimate means. The legacy of the current abortion law has been bequeathed not by democratic processes, but rather by fiat from a majority vote on a panel of 9 individuals far removed from democratic accountability. Adding to the furor, over the past decade and a half, 7 of those individuals (at any given time) were appointed by Presidents who professed similar beliefs on the abortion issue.

Wolf argues that if pro-choicers managed to get democratic ratification for their views, it would finally take the wind out of the sails of the pro-life movement. I'm still not swayed of the pragmatic attack on Roe generally. Specifically responding Wolf's points, I'd argue that on this particular issue democratic procedures can't or won't provide the legitimacy he wants because both sides think of themselves as representing groups marginalized in the democratic polity (pro-lifers representing unborn children who cannot vote, pro-choicers representing women [especially low-income women] who face rampant sexism and misogyny in America). Jim Crow, too, was enacted in an era of formal constitutional equality between the races. Democratic legitimacy is a boon when a group that is on the losing side of a dilemma still accepts that the procedures are neutral and they had their fair shot. When groups do not from the baseline trust that the polity will fairly consider their interests (a feeling which is, of course, ratified when they lose--which one side has to), then democracy will not confer legitimacy.

But the general claim about legitimacy being conferred from the perception of fair (often democratic) procedures is a solid one, and one that pops up again in issues such as the Iraqi elections and the immigration debates. I'd note with regards to immigration that the immigrants themselves have no reason to think that their interests are being duly considered when congress adopts immigration laws, so there will always be a significant gap between the black letter law and the respect that it is given by its target class. I'd also note that this does not translate effectively to disregard for other laws--as John Hart Ely notes, laws are looked upon with particular suspicion by a insular minority when they specifically target that group. So immigrants will be suspicious of immigration laws, but not, say, murder laws. That helps explain why immigrants have lower rates of violent crime than your average third generation American. The myth that allowing illegal immigration breeds disrespect for the law has its premise wrong: illegal immigrants will disrespect laws it feels are illegitimate--but that's the same as any other group and certainly does not include every law. The way to stem crime in the illegal community is to make it so that they do not fear the authorities, who can deport them. In other words, make them legal.