Volume > Issue > Why the Modern Democratic State Needs Abortable Children

Why the Modern Democratic State Needs Abortable Children

THE FETUS AS HOMO SACER — PART II

By Jason M. Morgan | March 2021
Jason M. Morgan, a Contributing Editor of the NOR, teaches history, language, and philosophy at Reitaku University in Kashiwa, Japan. He is the author, most recently, of Law and Society in Imperial Japan: Suehiro Izutarō and the Search for Equity (Cambria Press, 2020). He would like to thank Anne Conlon for her invaluable assistance with this article series.

Ed. Note: The first installment of this two-part series appeared in our January-February issue.

According to Italian philosopher Giorgio Agamben’s reading of ancient history, the homo sacer is a person outside the bounds of the law, someone who is, in fact, himself the boundary between the law and lawlessness. Without this person who may be killed without legal penalty, Agamben reasons, any given sociopolitical order would fall apart. Agamben, French philosopher Michel Foucault, and others who study biopolitics have identified the homo sacer in modern history as, for example, prison-camp inmates, who linger in a limbo between life and death, whom the state has forcibly set apart from society and may kill at any time. The Holocaust of the Jews was certainly an instance of the modern-day mass murder of a regime’s chosen homo sacer. But the linchpin of today’s liberal world order, its true homo sacer, is the fetus. Biopolitical discourse largely elides the topic of abortion, but this only confirms the centrality of the child in utero to the scheme of rights that frame modern law. The terrible reality is that without the fetus as homo sacer, liberal moderns would not enjoy the rights they cherish above even the life of their unborn children.

In Thomas Lemke’s Biopolitics: An Advanced Introduction (2011) we find one passage about abortion that is highly revealing. Lemke argues that there has been a shift over the past 30 years in “biopolitical processes” away from governmental “forms of discipline and population regulation” to individual “forms of self-care,” though with a critical distinction. Lemke writes:

Citizens themselves are granted the right to make life and let die…. From the deployment of reproductive technologies — for example, in-vitro fertilization — to the decriminalization of abortion (“let live or prevent from living”) to assisted death in palliative care (“letting oneself die”) or consciously induced death through assisted suicide (“making oneself die”) — all these features…have to do with decisions that are increasingly the responsibility of individuals…. “Self-determination” is a central feature of contemporary biopolitics…. This does not, however, signify a simple growth in individual autonomy. Rather, a new type of social control is established whereby only those decisions about the body that conform to social expectations and norms are considered rational, prudent, or responsible.

In this passage, we can glimpse the truth that the unborn child, the fetus, has become modern democracy’s homo sacer. Further, we see that abortion is not tangential to biopolitics; it is representative of it. Because abortion is almost completely missing from biopolitics debates, it is, paradoxically, central to them. That is, after all, how the homo sacer himself functions: as the exception which is also the rule. The unmentioned, unacknowledged, apparently unnoticed fetus, killed by the hundreds of millions in the modern world, is “bare life,” as Agamben put it, acceptable for the sovereign to kill.

If we accept that “bare life,” pre-political life, life prior to the sovereign’s fusing of violence and justice, is the material upon which biopolitics acts, then all that remains is to connect two of Agamben’s elements, bare life and the individual, to see how biopolitics operates in the present. But how did we get from the paterfamilias of ancient Rome, who held absolute authority over the lives and deaths of his children, to the modern democratic state, which holds absolute power over the lives and deaths of its subjects? In order to explain modern political philosophy, and especially the rise of the all-powerful modern sovereign, Agamben turns his attention to Thomas Hobbes. According to Agamben:

For Hobbes, it is this very identity of the state of nature and violence (homo hominis lupus) that justifies the absolute power of the sovereign…. It is important to note that in Hobbes the state of nature survives in the person of the sovereign, who is the only one to preserve its natural ius contra omnes. Sovereignty thus presents itself as an incorporation of the state of nature in society, or, if one prefers, as a state of indistinction between nature and culture, between violence and law, and this very indistinction constitutes specifically sovereign violence.

Hobbes’s justification for “leviathan,” the monstrous state, was that everyone is a little sovereign, and only one big sovereign, the bestial state somehow civilized, can maintain order. We are all, if Agamben and Hobbes are correct, both hunter and hunted, king and subject at the same time.

The sovereign is the one who stands before the law and forms the political by setting violence at the service of justice, and justice, according to the sovereign’s whim, at the service of violence. The sovereign is the one who stands atop the rule of law and administers justice, but he is also the one who holds the power to decide who lives and who dies. The King of the Grove in the ancient Italian wood sacred to Diana, he who assumed power via murder and was himself subject to having his power usurped via murder, was only one man. But under the Hobbesian doctrine, we are all sovereigns. For Hobbes, the sovereign is no longer the king but each one of us. Leviathan is a second-order, aggregate sovereign, formed from the overpowered wills of the mass of other, minor sovereigns bouncing around like atoms in the pre-political chaos.

The modern world is “modern” precisely insofar as we are all gods in our own right, Hobbesian lords who have internalized leviathan and now apply the violence of the monster-like state to ourselves, regulating our bare life as we see fit. Foucault said that, over time, people would internalize the panopticon and adopt the systems of state control as their own thought processes. In other words, citizens would become their own police. “My body, my choice” is a phrase that only a modern sovereign could utter. “Get your rosaries off my ovaries” is perhaps the ultimate expression of biopolitical sovereignty, the words of one who holds the power of life and death in her own hands, who decides who lives and who dies, who stands at once inside and outside the law. Christ’s death is represented on a rosary. The modern, liberal, Hobbesian sovereign has transcended Calvary too, but in a different way. Christ overcame death by His Resurrection. In the Hobbesian scheme, death is overcome by terrorizing subjects into surrendering their wills to a biopolitical master who would lord life and death over all.

Democratic regimes try to achieve peace by averaging all these sovereignties, transforming the sovereign individual into the general will. So, in a democracy, sovereignty is everywhere and nowhere at the same time. The citizen is a subject and also a king. This creates a dilemma that the modern, liberal, democratic state must overcome. The place where this tension is resolved is the womb. The escape valve for the contradictions of modern liberalism is the place where new life is conceived and nurtured. The unborn child (and, increasingly, the infant too, as infanticide is now legal in many places in the world) is our King of the Grove, our homo sacer, the “criminal” who is himself outside the law and who is therefore apart from society, able to be killed by anyone. Without this wicked transaction, there can be, paradoxically, no order under a Hobbesian (or Lockean or Rousseauian or any other kind of “social contract”) political arrangement in which everyone is king and subject at the same time.

The pregnant Hobbesian sovereign’s trick is to carry out this transaction in her own body. (Men are left no option but to encourage her in her wielding of the power of life and death.) The Hobbesian state issues no command to kill the homo sacer, but whoever does kill a fetus will not face legal sanction. If it were no longer lawful to kill a fetus at whim, then the modern democratic regime would collapse under the strain of its internal contradictions. If we are all kings, then we may all kill. If we may not, then we are not kings. There must be a homo sacer. We cannot kill one another because we are all kings. Who is left but the child in the womb?

This is what is really meant by the sardonic observation that abortion is the sacrament of liberalism. I wonder whether anyone realizes how accurate it is. Perhaps it would be more accurate to say that abortion is the anti-sacrament of liberalism, because the homo sacer can, by definition, receive no sacrifice. No ritual can envelop him or be efficacious toward him. The fetus is bare life, a political nonentity, and, as such, he is essential to the modern world. In abortion, liberalism becomes itself completely. It dispenses with bare life without regard for the humanity of the person killed. Liberalism is, in its essence, universal sovereignty premised on the expendability, at the choosing of the individual, of life inside the individual’s sovereign domain. English Enlightenment philosopher John Locke’s principle of self-ownership was never so perfectly realized as in the moment of evicting a new life from the self’s premises. Without the abortable fetus, there would be no liberal order. The peace of the realm depends upon the exercise of, or the potential to exercise, the power of life and death over the unborn child.

To kill an unborn child is to make oneself a kind of god. That’s why this child must never be acknowledged as a “human,” much like the monstrum, the deformed child of ancient Rome. The monstrum was never called human so that it (not “he” or “she”) could be exposed on the rocks to die. Not a murder, just a death. The modern homo sacer, like the monstrum before him, touchable by no law and no rite, is the avatar of the pre-political lawlessness underpinning the legal structure. Take away this controlled killing, this killing that establishes human control, and everything becomes uncontrollable.

The paterfamilias did not disappear with the democratization of human polity. His power simply shifted from the father to the mother. The mother today has absolute dominion over her womb in the way the paterfamilias once had absolute dominion over his household. It was from the power of the paterfamilias that the power of the Roman state flowed, just as it is from the mother’s dominion over her uterus that the modern state derives its own might, even its raison d’être. When liberals say that men are no longer necessary in society, this is precisely what they mean.

The necessity of a homo sacer, a person unpersoned and placed outside the law, is borne out by much of American legal history. In fact, it is no coincidence that, just as one homo sacer was being incorporated (the word here is highly instructive) into the American polity, another was being excluded. Before the Civil War, James Henry Hammond, governor of South Carolina, postulated that societies require what he called “mudsills,” the lowest level that held up the rest of the social edifice. We might extend Hammond’s metaphor: The mudsill class is not just the bottom rung of the social ladder but the foundation of the social order itself. Without despised outsiders, there could be no hierarchy and thus no law.

Could there be order in society if all were included as human beings? This is the key question, not only of the 1850s but of the 2020s. Human societies require, as Agamben says, a homo sacer, a murderable quasi-person who keeps any given regime in order, who keeps the rule of law from baring its teeth indiscriminately. Agamben, following thinkers of Jewish ancestry such as Hannah Arendt and Emmanuel Levinas, predicated much of his argument on Europe’s systematic exclusion of Jews from the social life of the Continent and then the systematic destruction of Jewry in the mid-20th century. Much of Agamben’s argument about Jews in Europe can be applied to blacks in the United States.

The Civil War ended in victory for the Union but not for the slave. As the horrific programs of lynching confirmed, long after the Civil War ended, it was acceptable, even sometimes deemed necessary, to kill blacks on sight. It was not until the late 1960s that blacks began to have any real hope of widespread rights in the United States, in both the North and the South, as the rawer racism of the antebellum and Reconstruction eras in the South gave way to the more “scientific” racism of eugenics and physiognomy in the North. As Arendt lays out in The Origins of Totalitarianism (1951), the rise of the nation-state necessitated the invention of anti-Semitism. When all are suddenly “citizens,” there must be some homo sacer, some mudsill, to girdle the body politic. In the United States, we had our own ready-made underclass, not Jews but blacks, and it was to them the elites turned when the rise of the American nation-state entailed, as it did in Europe and elsewhere, the counterpoint of national unity in an excluded middle term. Blacks’ shadow existence bound the American political edifice together.

There is a further peculiarity to the United States in that ours is a procedural, and not a forthrightly ethnic, polity. With the anti-slavery amendments following the Civil War, the Bill of Rights was “incorporated” at the state level. But there is another meaning here: Rights were “incorporated” into the legal persons of blacks, little by little, until, eventually, blacks became a political force in their own right. The Bill of Rights reconfigured blacks from homo sacers into Hobbesian sovereigns. This was a piecemeal process; by slow degrees, the original homo sacers of the American republic — slaves and then former slaves and then slaves’ descendants — were taken into the “body politic” by being granted a political body, a rights-bearing body, of their own. Blacks joined the Hobbesian composite-king. They had become “persons” only by being taken up into the person of the sovereign writ large. Blacks, their rights incorporated, could no longer serve as American democracy’s homo sacer because they had joined the armistice from the “war of all against all” known as the “social contract” and were therefore clothed with the law.

But this transition was precarious, because without a homo sacer, the law has no function. The loss of the “Negro” as homo sacer in American politics necessitated the creation of another to take his place, another keeper of the ballast of chaos and violence that is the necessary counterpart to the “rule of law.”

A solution was soon found. With Roe v. Wade in 1973, the U.S. Supreme Court essentially replaced one homo sacer with another, substituting the “fetus” as the new mudsill in American political life. As blacks gained full citizenship in the 1960s, thus disqualifying them from serving as the law’s victims by dint of having become participants in the law’s regime, babies in the womb lost their personhood in the eyes of the law by the exact same measure. The status of homo sacer passed from the outcaste race to the outcaste unborn.

Many pro-life activists have spoken of the targeted killing of the unborn child, and many others have made the connection between the elimination of a fetus and the elimination of a race by genocide (e.g., the Jews in the Shoah). Abortion as assassination, as genocide, is not just a hyperbolic rhetorical turn; it is quite literally true. Our society has been erected on several different graveyards, but there is an affinity shared by all who have had their political personhood stripped so that others in the law’s purview could be clothed in the full wardrobe of rights. The massacred Indian and relocated tribe, the lynched slave and his disenfranchised descendants, the unborn child in his murdered multitude: These have all been our homo sacers at various points in our nation’s history. In some way, the state sees them all alike, as the calculus that squares the circle and makes the wilderness into a polis, transforms primordial violence into the rule of law.

For years I have argued in favor of personhood amendments, even lobbying my representatives in their offices from time to time to implore them to protect the unborn by declaring that they are as much human beings as the rest of us. Though there are many pro-life heroes in state legislatures and even in the U.S. Congress, I have lately come to see that the wall I have been trying to topple is the bedrock of the state itself. While a personhood amendment would be a tremendous victory for the pro-life cause, it is the equivalent of asking the current legal regime to commit hara-kiri. If the unborn are people, then there is no more homo sacer.

In a world in which everyone is equal and no one can be excluded, the only way for the law to go on functioning, if Agamben and other biopolitical thinkers are correct, is to find an alternative homo sacer. Who might it be? Illegal immigrants, who already live on the margins of society and have an ambiguous relationship with the law, come readily to mind. So do the despised, “deplorable” Trump supporters, who have become political personae non gratae almost overnight. And there’s the elderly: At least one governor was quick to throw them over the transom when the coronavirus hit. Perhaps another group will be targeted. There is never a shortage of candidates.

As we contemplate the long legal battle over Roe v. Wade, let us take full, honest stock of what we are really up against. Overturning a law in a modern, Hobbesian democracy is not going to stop the murder of innocent people. Stopping the killing of the “fetus” won’t necessarily mean doing away with the most ancient impulses of our darker natures. It will merely mean another reordering of our political life — a life in which a homo sacer will always be with us, and might possibly be us.

 

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