A Problem With Glenn's Argument

Instapundit is always a must-read. He's not on my daily roll, but I look him up a few times a week to get a balanced, usually fair assessment of pressing topics. In this post, Glenn provides a legal opinion related to this post by Jonah Goldberg at the Review.

Jonah asserts that TV shows, especially those espousing traditionally liberal values, never allow their female characters to have an abortion, even while supporting a woman's right to by-golly to so whenever she darn well pleases. Glenn threatens (probably an empty threat, he readily admits) to submit a legal review on this topic, and points out that it is possible for someone (like Glenn, dern him) to both support a woman's right to abort, as well as hold her criminally liable for subjecting the unborn fetus to medical dangers like alcohol abuse and tobacco. An interesting conundrum, but one which, I think, misses the actual point.

Glenn points out that under common law, there is no "duty to rescue." This means, to use his example, that if a baby insists on drowning itself in an inch of water, you are under no legal obligation to rescue that child. Of course, he continues, there's always the moral obligation, but legally you're clear. It's only when you actually attempt to assist the baby that you'd better be ready to see it through to its logical conclusion, else be prepared to suffer the consequences.

Here's the problem I see with Glenn's argument. While factually correct, it asserts that a man's duty is legal first, and moral second. Or, in other words, anyone with a spiritual conscience may feel compelled to act, but in the "real world" that moral compass is really just a tool. A means to an end.

So what happens when we reverse that assumption?

Let's take Glenn's example of the man passing by a drowning baby. For a person who has that moral compass - especially in the form of a religious upbringing or training - the first instinct would be the protection of that baby. This person, legally, then becomes subject to the legal "duty to rescue." Naturally, anyone who first undertakes to rescue this child would want to see it through to its conclusion. That's what the moral compass provides.

By making that moral compass subordinate to legal requirements, the instinct is stifled. Fear of legal reprisal makes us wary of wanting to offer assistance to anyone, infant or adult. It dampens our resolve to help others who require help, in any form. If there's no legal payoff, we don't play.

And that's a shame.

The Founders knew that their constitutional government was not, by any means, perfect. Because they could only address so many things from a moral perspective, they wrote copiously about the need for men to keep their moral compasses fully charged. Stay true to your Creator, they insisted, and He will guide you through all difficulties. Ignore Him at your peril.

When God gave Israel its laws, he made the legal requirements subordinate in all things to his own eternal law. The moral compass was to rule in all legal matters, and the law was both temporally and eternally binding. Men feared the consequences because they feared (in theory, anyway) the wrath of their Deity.

Will we ever learn that lesson?