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| 7/29 |
| 2004/11/10 [Politics/Domestic/Abortion] UID:34807 Activity:very high |
11/11 The Trouble with Roe
http://www.nationalreview.com/mccarthy/mccarthy200411100848.asp
Excellent.
\_ I don't like democracy. -- ilyas
\_ Huh?
\_ "The people are revolting!" -geordan
\_ "The Constitution says not a word about abortion". Nor about
women voting. Without going into strict vs. loose constructionism
you cannot have a static document that constrains every single
aspect of how your government evolves. New shit happens, and
a democracy must adapt to deal with it. This is why we have a
supreme court, to interpret the damn constitution, instead of a
500 page EU monstrosity that addresses every conceivable
eventuality of government. -John
\_ Adding to what you said: Dubya is a strict constructionist.
\_ No, that's why we have a legistature and an amendment
process.
\_ ...which is currently busy banning commie fags from
getting married. Next?
\_ When in doubt you can always gay-bait, huh?
\_ Referring to pp. Sarcasm, pal.
\_ the power belongs to the people. Why not let them decide
through their legislatures rather than judicial fiat?
\_ You see we have a government of 3 branches and it is a
good idea to have 1 branch not be accountable to the
people. This is a republic, not a democracy.
\_ You misunderstand the nature of the 'republican'
contract, as embodied in the Constitution.
What insights on the morality of abortion does
a Supreme Court Justice possess as compared to
say, a MOTD contributor?
\_ A bunch more, by virtue of a superior education,
judicial experience reviewing and interpreting
legislation passed by representatives elected by said
MOTD contributor, and authority stemming from
confirmation by those elected officials. Point? -John
\_ Though I don't know you, you appear to me
as a statist who likes
authority figures to tell you how to think.
You prefer the warm sanctuary of security rather
than the risks and responsibilities of liberty.
\_ A majority of the public supports choice.
\_ Caveat: so do I. However, a majority of the public may also
support killing you and scattering your ashes; the joy of the
Constitution and the Amendment process is that a simple majority
cannot vote your rights to life, liberty, and the pursuit of
happiness out of existence. Should Congress attempt to pass the
"Very Specific Extermination Law," the USSC would be able to stop
the law from being executed against your person. Yay, the
system!
\_ You're assuming that said law doesn't become a constitutional
ammendment.
\_ I'm sure the public was against interracial marriage at the time of
the case that allowed it. Majority does not always rule.
\_ A) You're "Sure?" Any evidence? B) I actually don't care
about A, because this is a completely unrelated red-herring.
\_ I am not sure you can dismiss pp's point quite so easily.
Even if the public was not in fact against interracial
marriage, it _reasonably could have been_. And so you are
left with having to give an account of that situation anyways.
Consider the medieval 'public.' Democracy sort of works where
there is a cultural bedrock of common decency on which it can
rest. -- ilyas
\_ Democray only works if there is an understanding that
while majority has power, the rights of the minority(ies)
need to be respected and considered. This is something
that has been in short supply lately.
\_ Ok, furthermore, the consitution actually DOES talk
about race relations. Given Amendment 15 (in
conjunction with 14) it's hard to argue that the
Consitiution doesn't implictly conver interraccial
marriage. The Constitution DOES trump the majority,
this is covered in the article. (Unless the majority
is so large it can change the constitution.) But
abortion just isn't covered in the constitution.
\_ Erm, if you stretch XIV and XV ("voting stuff") to
cover interracial marriage, I can just as well stretch
IX and X ("rights stuff") to cover abortion. I
hereby sentence you to look at tubgirl. -John
\_ Fine, pick something 'obviously bad' not covered by the
Constitution. (Say no woman voting, per John's post
above).
Now imagine a 'fairly plausible' society
which would have a majority support for the
'obviously bad' thing. Now it's not so easy to dismiss
them philosopher kings, is it? -- ilyas
\_ A) Woman voting is also covered in the
constitution, and before Amendment 19. B) I'm
sorry we live in a democracy. Maybe you could
move someplace else, one run by philosopher kings.
\_ You = st00pid tr00l
\_ "abortion just isn't covered in the constitution".
Yeah. Basically, when does life begin? At conception?
If so, the zygote has as much of a right as a newborn.
Killing the zygote is killing a newborn.
Does life begin at birth? If so, you can terminate
the zygote.
Does life begin at the third trimester? If so,
you can terminate up to the second trimester.
Yes, the Constitution does not cover when life begins.
Pro-lifers say Science says life begins at zygote.
Pro-choice ppl say Science says life doesn't REALLY
begin until the second/third trimester.
Dur, someone shewt me. Life has obviously ended here.
\_ You're slightly mischaracterizing the pro-choice
position. Sperm are alive, eggs are alive, and
\_ Every sperm is sacred! --monty python
zygotes are alive. The things that have rights and
deserve protection are human beings, not human being
cells. An embryo is not a person because it is
not capable of thought or emotion until it has
become sufficiently developed. Exactly what level
of development allows for thought and emotion is a
scientific question, and therefore a sound basis for
law. When a soul is created is purely a question for
religion, and thus is not a sound basis for law. In
RvW they took amicus briefs from a bunch of religions
asking when an embryo becomes a person and got
answers varying from "before conception" to
"not until it has taken its first breath".
\_ So is anyone still wondering why I called
this subthread a "red-herring" and tried to
kill it early?
\_ Yes, this is what I meant when I said "Science
says life doesn't REALLY begin until", but I
thought that was obvious.
\_ !excellent
If he takes that long to get to the point, he probably doesn't have
much to say.
\_ Jane Roe is now pro-life
\_ OJ is still looking for the real killer
\_ non-sequitor counter argument
\_ Are you Chinese? Do you understand the effect the opium
trade had on China?
\_ ironic |
| 7/29 |
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| www.nationalreview.com/mccarthy/mccarthy200411100848.asp November 10, 2004, 8:48 am The Trouble with Roe The Specter controversy is not about abortion. A firestorm engulfs Senator Arlen Specter's bid to become chairman of the powerful Senate Judiciary Committee, the place where judicial nominatio ns have gone to die a politicized death ever since the venomous brawl ov er Judge Robert H Bork in 1987 and with more regularity since the fil ibuster made its unprecedented appearance as the grim reaper during Pres ident Bush's first term. The storm is ignited, however, by two wary flan ks of the wrong divide. Click Here For 30 years, the nation has been torn asunder by abortion. It is, by now , almost quaint to observe that people of good will and great intellect find themselves on both sides of the question of when life begins at w hat point it becomes our obligation as a society to acknowledge its sanc tity, to accord it, however defenseless it may be, the protection for "l ife" explicitly reserved in the US Constitution, and venerated in both American tradition and natural law. But of course, abortion has been a hotly disputed issue for far longer th an that. What has made the last three decades different is not abortion as such. What changed, with the Supreme Court's landmark 1973 decision i n Roe v Wade was the popular perception of republican democracy itself. It is not abortion but rather this transcendent issue of self-determina tion of who, finally, will govern the American people that is the co re of the controversy roiling the Senate judiciary committee as well as the confirmation process. No doubt, to have become "Roe" a term now no less familiar and freighte d than "Vietnam" or "New Deal" in conjuring a historical sea change th e case had to be about abortion. Still, the United States would be an in calculably healthier place today had it involved flag-burning or bigamy or some other brouhaha that excites partisan passions but not so much so that it towers above its terrain, the tree that loses the forest. It is at the epicenter of a generation's turbulent fault lines, pitting social duty against individual autonomy, the religious against the secular, ethical convention against emergent s exual freedom, and science against itself as technology both extended vi ability and became ever more creative about ending or altering it. Tragically, though, all this has hopelessly obscured what is most critica l about Roe: constitutional governance. Abortion aside, Roe is about whe ther the American people should decide for themselves, democratically, h ow they will live their lives, or whether they should submit to robe-cla d philosopher kings. To understand this requires recognition of two very simple (I would argue , unassailable) premises. First, the US Constitution, in whose ultimat e interpretation the Supreme Court has been thought dispositive since it claimed that power in 1803 (Marbury v Madison), simply does not, and w as never intended to, provide a definitive, substantive answer to every question or even most questions confronting our society. Because where the Constitution provides an answer, the will of the people, expressed through debate and election s, is trumped. The people can change the outcome only by amending the Co nstitution. Since the Constitu tion does not answer every question, there is necessarily some undefined expanse of life's matters as to which people can reasonably debate whet her the Constitution does or does not prescribe an outcome. Now, if we w ere ruled by physical force, might would determine right the ability t o project raw power would dictate results. Legal License The profession of lawyering involves a nigh-infinite elasticity, colloqui ally referred to as "the ability to argue both sides" of any question. Words are expanded o r contracted to the limits of plausibility in order to press a particula r point of view. Consequently, how much actual democracy there is in our democracy depends in the end on how much license is reposed in the nati on's most elite lawyers, appointed as federal judges, to expand or contr act the words of the Constitution. That the case arose in the context of ab ortion as opposed to some other social or cultural controversy as to whi ch the Constitution does not provide a clear answer should have been a s ideline. Yet abortion polarizing, ultra-loaded abortion remains to t his day the tail wagging the democratic dog. Though the practice has existed for centuries, we had somehow lived through 186 years of constit utional governance without its being noticed that the document guarantee d a right to terminate pregnancies. This latent discovery in 1973 was pr eeminently about lawyers and words. In this instance, it was about the f ecund potential of the Fourteenth Amendment's promise of liberty, glosse d by a developing line of cases incubating a parallel right to privacy a similarly malleable concept, different from liberty in that lawyers h ad had to derive it from Constitution's glowing penumbra, the term being absent from the actual document. Practically speaking, in the adroit hands of the nation's best lawyers, t erms such as "liberty" and "privacy" are boundless and, lest we forget , the Constitution, to say nothing of its many penumbras, ellipses and l acunae, contains many such words. The upshot is this: The more those wor ds can be stretched, the more forbidding a fortress they become around l ife's disputes, and the less remains for the American people to determin e for themselves. Instead of the masters of our fate, we become the subj ects of those empowered to say what the words mean: the judges. Arlen Specter & the Constitution The judiciary-committee controversy is not about abortion. It is about wh ether there is any meaningful limiting principle that compels judges, re gardless of their predilections and the trendy pieties of any particular era, to stay their hands so that Americans are free to live as they cho ose including in 50 different ways if that is the judgment of the peop le in 50 different states. There are, essentially, two competing visions of judicial philosophy. The first, the one that is regnant at this time (and to which it appears Se nator Specter subscribes), is that the Constitution with its many plia ble terms is as manipulable as necessary to place beyond democracy any issue that may be said to reflect a "value" the American people revere at a given time. The problem here is that this camouflages a brute power reality. In truth, the American people have very few values which enjoy such broad consensus that, given the choice, our society would enshrine them in ou r Constitution and render them immune from further popular consideration , regardless of evolving attitudes or changed circumstances. Constitutio nal protection, we must admit, is a forbidding carapace one need look no further than the contortions engaged in by would-be reformers when va lues incontestably engraved in the Constitution, like free speech and be aring arms, collide with innovative schemes like campaign finance and gu n control. It is a commonplace for judicial opinions to couch various concerns in ex travagant rhetoric about values claimed to be venerated by all Americans . Yet, at bottom, this reflects nothing more or less than the subjective preferences of a majority (often a bare, fractious majority) of judges whose views about social issues, even if they masquerade as legal issu es, should be of no greater moment than what the people of, say, Bayonne or Des Moines think about abortion, or gay marriage, or stem-cell resea rch. The second school of thought holds merely this: that judges are not supre me. It contends that there are firm, objective limits to the areas of li fe that jurists may remove from the democratic self-determination of the American people. They are found in the text of the Constitution as it w as originally understood at the time its provisions were adopted. This philosophy is erect ed on an unchanging premise: In a democracy, it is to be presumed that g reat social conflicts will be resolved democratically. That presumption is not beyond rebuttal, but for it to be overcome there must be unmistak ab... |