Liberals have taken control of the Wisconsin State Supreme Court by a 4-3 margin based on a decisive victory by a liberal judge who suggests she will put her thumbs on the scales of justice. Said another way, she will pick winners and losers based on her personal preferences. James Madison, as well as other prominent founders, suggested this was an illegitimate methodology of adjudication.

“…I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution“ (James Madison letter to Henry Lee, June 25, 1824).

The poor showing by conservative Daniel Kelly was probably a combination of poor conservative turnout, public ignorance on the constitutional role of the judiciary, and the propensity to make the election a referendum on a few hot-button issues supported heavily by out-of-state monies.

The two issues that were dominant features in this election were “fair” electoral maps and abortion. I will discuss both. The Democrats have complained for years that the Republicans gerrymandered maps to ensure their voting majorities into the foreseeable future. True, as far as it goes. But they had to win the elections the first time in order to have the political power to make the alterations. After Obama’s 2008 victory, he famously said to those who complained about his monolithic agenda and cabinet appointments, “elections have consequences.” That is all but forgotten by those who feel aggrieved by the maps.

Additionally, I can’t think of anywhere geographically that liberals aren’t represented by a liberal politician where their constituency is in the majority. Their big beef is that districts aren’t equally divided according to numbers. But this has never been the case. The electoral system has always accorded representation to sparsely populated rural areas so candidates couldn’t merely win elections by pandering to the wants of people in metropolitan areas.

We also have to focus on what people really mean by “fair.” Often fairness is really a function of what is most advantageous to the aggrieved party. All the methods people have proposed for redistricting would simply invalidate the prerogatives of winning the election. The methods are presented in a way that seems reasonable on the surface, but those making the proposals know ahead of time they would benefit from the new methodologies. Nothing is really left to chance. Those who complain about the unfairness of gerrymandering don’t seem the least bit concerned that gerrymandering occurs in other places whereby the shoe is on the other foot. Kind of like the people who despise lying politicians, except for the lying politicians that promote the policies and agendas they prefer.

We turn our attention to abortion. Of course, the standard conventional wisdom is that conservatives must moderate their views on abortion to win elections. This goes way beyond carving out exceptions for pregnancies resulting from rape and incest. But even at that, the pro-life position has always been consistent in asserting that the developing baby is both fully human and fully a person. What rational sense does it make to then slip into the contradiction that suggests the child is less human or less of a person depending on the conditions of conception? A better strategy is to make arguments that resonate with people capable of given a fair hearing to an alternative viewpoint.

People frequently appeal to “science” as their guideline. Fair enough. Biology can genetically determine humanness, but the concept of personhood is philosophical in nature, based on the propositions of functionalism, an arbitrary and fluid definition that suggests personhood exists only at a certain stage of viability. Of course, this has implications at the other end of the life cycle then as well.

People love to use wag-the-dog strategies and the token hypothetical situation to justify abortion in general. The person who advocates partial-birth abortions will use the exceptional case of a adolescent girl being raped to blunt the gruesomeness of their advocacy.

Life decisions are seldom clear cut and without conflicting emotionally charged baggage when you stick to principle. Being consistency pro-life is often a question of choosing the lesser of evils. The idea of someone who is the victim of rape having to carry that child is an evil but terminating the child because of the conditions of conception is worse still. If you are squeamish and back away, you will keep sliding backward.

It may surprise you to know that as recently as 30 years ago, both my late wife and I thought of ourselves as pro-choice. We ignorantly took the same position that many others took, that is, we are personally opposed to abortion, but believe we can’t impose that conviction on others.

One anecdote demonstrated to us the intellectual bankruptcy of that position. It dealt with the 1860 presidential election, where Abraham Lincoln and Steven Douglas debated the issue of slavery. Douglas said that he wouldn’t argue whether slavery was right or wrong but believed that each state should have the autonomy to decide for themselves. In other words, pro-choice. Lincoln countered by arguing that the virtue inherent in any choice depends entirely on the thing being chosen. He reasoned that if African Americans were human-beings and not beasts of burden, then any choice to enslave them must be deemed nothing but a monstrous evil. Nobody would argue that for me slavery is evil, but I can’t impose that standard on my neighbor.

I can’t help but wonder if anyone else has noted that all the “right to choose” arguments completely ignore, I mean completely ignore, even the possibility that terminating a pregnancy is ending a human life. It’s just a clump of cells or products of conception. Yet our legal system is double minded on this issue. I heard of an incident where a pregnant woman got into a dispute with her boyfriend, sped off in a car, ran a red light smashing into another car. She lost her baby in the accident and was charged with manslaughter. Years ago, Scott Peterson was charged with double homicide for murdering his pregnant wife. How can we as a society sustain this irrational dichotomy, where if you want the child, it’s a baby, if you don’t, then it’s not human or a person?

A very ardent feminist once told me that my opinions on abortion were irrelevant because I didn’t have a uterus. The appeal to participation. At that time I asked her if she opposed the current military conflict, and she told me she did. I asked her if she was ever in combat or served in the armed forces, because, if not, given her logic, then her opinions about wars are irrelevant.

All too often we lose arguments, thus elections, because we accept the premise of our opponent and try to craft answers to fit inside of their assumptions. Better to assert that their presuppositions fail the test of rationality in the first place.