Wednesday, July 20, 2005

If If Roe v. Wade is overturned, everyone should worry, not just pro-choice supporters

Lately it has become almost in vogue to disparage Roe v. Wade as a legal opinion. Its main holding though, the "right to privacy" is sound, and if Roe is overturned on those grounds (which I think it would have to be), then all of us, and not just those of us concerned with women's reproductive rights, should fear.

Strict constructionists like Antonin Scalia have made it seem as if the U.S. Constitution enumerates individual rights. Scalia's opinion is that a right to abortion cannot be found in the constitution, therefore there is none. He says so a couple of times in his dissent in Stenberg v. Carhart, and he has said it before:
It has been arrived at by precisely the process Casey promised–a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not)
If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject,
However, what Scalia doesn't acknowledge is that the Constitution does not enumerate all rights of American citizens; it defines limits on government. If the Constitution were to enumerate all of our rights, that would be scary: it would be like saying these rights written here and these rights alone are your rights. It would be a model for a fascist mandate. Even if the federal government had the best intentions, many rights wouldn't be covered. For instance, a state or locality that had some grudge against, say chewing gum, could make a law against it with no federal repercussions. How could there be if the Constitution hasn't enumerated a right to chew gum?

The Ninth Amendment is rarely mentioned, but its provision that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" supports the idea that the Constitution is not a document that enumerates specific rights.

Take another example. The state of Illinois passes a law that says people can only sleep for seven hours a night. Guess what? There's no right in the Constitution on sleep. (Well of course not, because the Constitution defines government limits, not individual rights). Still, under the Scalia interpretation, a sleep law is constitutional because there is no right to choose one's own sleeping schedule defined in the Constitution, just as there is no right to abortion because there is no right to privacy in the Constitution.

10 comments:

Chris said...

I actually generally agree with you regarding the lack of enumeration of rights in the Constitution. The writers didn't list them becuase they feared Congress and the Courts would argue that those were the only ones.

However...

A Supreme Court decision such as Roe effectively changes the Constitution (as do most laws in some way). (I'm a tepid supporter of the decision because it's far too difficult to take away a "right" after its been given out.)It's one the reasons I generally abhor the use of the term "right" because you can argue that you have a "right" to just about anything (ice cream every day, for example). Where does that source of inherent ownership come from? Who knows.

I do, however, think you misinterpret Scalia's interpretation of the Constitution. Your example about regulating sleep would be unconstitutional, I would argue, because of the 4th Amendment because to enforce it, it would involve illegal searches.

The Ninth amendment allows for abortion to be legal in the states that deem it to be legalized. The key difference is, who is it who creates the additional right: Scalia and others would argue that the legislature does, because it is the branch of government most closely connected to the people. If Roe were reversed, most states would, indeed, continue to have legalized abortion because of that legislative process. It would probably be preferable for pro-choicers for Roe to be overturned, because the alternative is a slow chipping away at the decision (banning partial birth, banning federal monies, etc) until it is effectively nulled without actually being overturned.

Schwerve said...

Chris, your grammer appears to betray a failure in your assumptions about the nature of "rights". Rights cannot be ennumerated they are not things to be ennumerated. As you state in the second paragraph you do have a right to eat ice cream every day. You have a right do whatever you so wish. Rights aren't specific actions but the lines which define a spectrum of action. I am allowed to act however I so please until that action begins to impinge upon the desired action of another person. In such a case the courts are used to ennumerate, not the right itself, but the limits of action to ensure the maximum freedom for both. We invoke the concept of rights only when we talk about demarcation, never casual action. Thus when you talk of "right creation" you discuss a newly created course of action or decision. Such a concept suggests that rights exists as separate entities and only until developed by law do they exist. It's a failure of logic induced by the grammer and history of the subject.

Chris said...

"Such a concept suggests that rights exists as separate entities and only until developed by law do they exist."

Firstly, I'm not a postivist; however, we do live in a political system which is, by its nature, rather positivist.

In the history of rights in the West, there are (for purposes here) three types: absolute, objective, and subjective. In the United States today, our most important absolute rights are the three named in the Declaration of Independence (whether they really are is another debate). Objective rights are those granted by law or some other authority; so, they can, indeed, be enumerated irrespective of whether they should or should not be. The last, subjective rights come from an individuals own feelings - it can be almost anything one feels is due them, or he can do. The acceptance of subjective rights can only come about through the culture, which can be right or wrong, given the issue at hand. If we find that certain practices or institutions are in fact popularly willed, then they are called "rights" because this is what, in such a theory, causes rights to be rights. When the society, by and large, doesn't agree, in such a case like Roe, there are problems because of the conflict of other rights espoused by that society.

As to the ice cream example, I should have been more clear; you have the (active right) to eat ice cream daily or whenever you want, but you don't have the right to demand that ice cream be provided for your daily consumption by anyone but yourself. This, of course, is impinging on the actions of another but it can still be demanded as a "right" because if others can eat it every day, and you, for whatever reason, cannot, you can demand that you are being made unequal. At its worst such a concept of rights become mere whim or unlimited will; we, of course, don't live in this kind of Hobbesian environment because the founders of the US believed in a few "unalienable [read: absolute] rights" which do not stem from our own subjective selves.

Elaine said...

In such a case the courts are used to ennumerate, not the right itself, but the limits of action to ensure the maximum freedom for both.

Schwerve, I think this is a key point. (Also, I'm a big fan of your 'Blue State Secession Movement' blog). Also, I'm glad my blog can foster discussion between thoughtful people.

I'll try to say something substantive on this later, if I can add anything.

Elaine said...

I'll respond to Chris. How do you propose we define our freedoms if rights is too strong a term for it? I think the limits to rights should be (as Schwerve says) the point that one person's rights begin to usurp on another's. So of course, I do not have a right to kill because I am denying my victim and fellow citizen his rights.

A judge's discretion comes in when deciding what are valid rights. I would hope a judge would use his/her discretion to decide that reproductive rights are valid rights. The existence of a judicial branch acknowledges that there should be limits to what elected bodies can do, so not everything should be up to a state. Laws that may be popular may not be constitutional.

I think my quotes from Scalia support my interpretation of Scalia's approach.

Chris said...

"I think the limits to rights should be (as Schwerve says) the point that one person's rights begin to usurp on another's."

I think theoretically this can work, but as people determine that they have more rights, the point at which one begins to usurp the other's rights is constantly in flux because, if it is not codified directly in the law, the one who feels his rights to have been usurped can argue so, whether they have been or not, and the line moves further. With a good lawyer almost anyone can argue that their rights have been usurped (numerous tort cases and 1st Amendment cases come to mind).

I agree that not everything should be up to states, and one of the purposes of the Supreme Court (because of the appplication of the 14th ammendment) is to determine whether states' laws violate the federal Constitution.

"I think my quotes from Scalia support my interpretation of Scalia's approach."

I can't let you get away with that. First, it would be helpful to provide the full quotes from the ruling striking down Nebraska's partial birth abortion ban, so I shall.

"It has been arrived at by precisely the process Casey promised–a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is “undue”–i.e., goes too far."

He argues here that they have decided using neither the Constitution, nor precedent, but rather their own personal political judgment, which is entirely subjective. He believes, that if they had followed those two forms of interpretation, they wouldn't have decided the way they did, especially in light Casey v. Planned Parenthood.

"If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed."

You cite the ninth amendment to support your claim; however, it is the ninth amendment that provides the basis for what Scalia is saying. There is no right to privacy specifically in the Constitution; Griswold v. Connecticut asserted marital privacy. However, there's a large jump between Griswold and abortion rulings. So the question is: where did the expressed right for an abortion, a practice that has been officially abhorred in West for centuries, come from? Because of this complete change in opinion by several people, Scalia argues that before we make this an official right, it should be up to the people to decide.

Finally, I find it ironic that you use as your example that you don't have a right to kill, while you cite Stenberg v. Carhart: the thing about Stenberg v. Carhart is that it allows the inducement of birth in order to kill. Even if you don't believe that it is murder, it does move a couple steps closer to allowing a right to kill, since the child is not entirely "unborn".

To answer your question about if not rights then what? "Right" or "jus" to use my most favorite professor's words, "refers not to what is willed to be the form of action or regime but to that intelligible rightness that exists in every human action by which it is either good or bad, either this action or that. We may indeed not know much about the Constitution but know quite clearly what we like. What virtue ethics and politics ask is whether what we like is itself in conformity with what is" (http://www.morec.com/schall/natlaw/dissat.htm) The natural law answer would be, "virtue ethics and politics"; however, in our relativistic society in which many reject any kind of moral authority except one's self, it would be impossible establish what the "virtues" are; therefore, we go by what has been given to us in the Constitution and should a new "right" be demanded, it should be up to the people who will vote based upon their own "virtues" rather than that of "nine lawyers."

Elaine said...

I guess I'm not sure what you disagree with about my portrayal on Scalia. Scalia does not find a right to abortion in the Constitution, he says in Stenberg. Therefore, Scalia seems to be saying that for a right to be legitimate, it has to be enumerated in the Constitution. I disagree with that.

I don't really want to get into abortion, but I think the "partial-birth abortion" laws constitute an opportunistic method used to test court rulings on laws that restrict abortion. Medical studies show that third trimester abortions are a rare procedure undergone mostly for health reasons. One thing that rankles me about political forays into abortion (and a lot of medical issues) is the political officials' belief that they know best on medicine. Banning partial birth abortion basically nullifies any medical reasoning that may recommend the procedure for a particular patient. Despite having a doctor in Congress who claims the ability to diagnose patients by watching them on TV, I think issues that are fruaght with health concerns like "partial birth" or third trimester abortion are best left to doctor and patient who know the situation best, not legislators.

Chris said...

"Scalia does not find a right to abortion in the Constitution, he says in Stenberg. Therefore, Scalia seems to be saying that for a right to be legitimate, it has to be enumerated in the Constitution."

What I was arguing is that instead of finding nothing regarding the issue in the Constitution, he finds that it is neither in nor out of the Constitution, and that according to the 9th amendment it is up to the people (through referendums or state governments) to decide whether the right should be supported by the government or not. That's all. It would be entirely different if Scalia decided to acknowledge a fetus as a person under the Due Process Clause, I don't agree with it, but that's the argument given by truly pro-lifers. So, in effect, between the pro-choice and pro-life views, sending it back to the people really is the "moderate" thing to do.

Chris said...
This comment has been removed by a blog administrator.
Elaine said...

I think the moderate view is acknowledging that abortion (or any other reproductive rights matter) is something best left up to a woman and her doctor and whomever else she wishes to include. A law making abortion illegal should be ruled unconstiutional because such a law encroaches on the rights of the individual, even if it is a popular law (this is part of what courts do). Abortion is a private matter, in my opinion, and I would hope a judge would agree.