Friday, May 26, 2006

Where does the Constitution guarantee the right to life?

Nearly a year ago, rob at "Sayanything" spoke predictably and thusly:

Abortion Battle Raging

WASHINGTON (AFP) - The life-and-death issue of abortion tightened its angry grip on US politics, as a multimillion-dollar feud erupted over President George W. Bush's first Supreme Court pick.

"We will be on the streets ..., at the gates of hell, where innocent blood is being shed," protest group Operation Save America said as it mobilized to picket an abortion clinic and the offices of a pro-abortion group.

Several miles left on the political spectrum, The American Civil Liberties Union warned "the stakes could not be higher," arguing that Supreme Court safeguards for abortions were now at risk.

Notice that Roe vs. Wade is referred to as a "Supreme Court safeguard" rather than a constitutional safeguard. That's because the "right" to an abortion does not exist in the constitution. Rather it is a "right" created by our federal judiciary, though everybody likes to pretend that its in the constitution.

Anyway, I honestly don't see Roe getting overturned any time soon. Roberts simply does not change the SCOTUS dynamics enough for anyone to say that any meaningful change is coming.

I think Roberts is a step in the right direction (he's supposedly an originalist), but wake me up when its time to nominate a replacement for somebody like Ruth Bader Ginsberg.

This and most of the comments are typical of the reflexive sort of conservatism we have come to expect, but there shines one bright spot:

I don't begrudge a judge for their rulings, so long as their ruling is soundly based in the law. If someone can convince me that a right to abortion exists in the constitution, by all means, I'd support that decision. The majority opinions in Roe vs. Wade fail to sway me. It was a bad ruling. But that's not to say that I wouldn't be convinced by someone else's legal argument for it.

I do have a good argument that has the advantage of being refreshingly uncommon - but I have first a facile rhetorical question that serves as a lead in to the argument:

Where does the Constitution guarantee the right to life?

At the time, such a guarantee was patently absurd; death was common, infant mortality ran about, what, 40 or 50 percent? Death in childbirth was common enough to be a social constant. One cannot assure a "right" to life in the face of the disagreement of Providence and Nature. Nor is it really any more true today. We have simply altered the odds somewhat, for those that can afford it.

I dryly observe that right you have to buy is not a liberty but a luxury. To honor that concept beyond this particular breach would require some form of universally-accessable health care at a very high standard, much like that of every OTHER civilized nation that counts itself a member of the First World.

The Right to Life, Liberty and the Pursuit of Happiness are all things that can only be guaranteed to the extent that we agree to not interfere with the lives and choices of other persons.

One cannot shoot Death in the face, but one can put a bullet up the nose of a nosy neighbor, and the Constitution speaks of such rights as can be defended in such a manner. The rights enumerated in the Bill of Rights, as well as those unenumerated under Amendment X are the rights of individuals which may be asserted and successfully defended by individual choice - even when the result of such choice is death.

"Give me Liberty, or give me Death." Patrick Henry, of course. Death, as a foreseeable consequence of constitutionally-protected action was not at all outside the scope of our Founder's actions.

Consider also the Affair of Honor between Aaron Burr and Alexander Hamilton. Hamilton, the offended party, had the honor of the first shot, and reportedly chose to discharge his weapon into the air. Burr chose otherwise, and thought Hamilton a fool for having acted as he did.

The most fundimental right our consitution gives us is the right to say "no;" whether that is a refusal to kill - or the refusal to risk letting an avowed enemy live. There is the implicit recognition that people can, and indeed will choose to resist "persuasion" with force. There is no exception made for foolish choices, no distinction made between popular and unpopular outcomes - nor does it free you from the logical consequences of any choice you make.

The Constitution does not defend your right to make personal decisions nearly everyone agrees with and will gladly help you with. There's no need go guarentee what any tyrant would happily enforce; a general predictable conformity that most people are happy enough to tolerate is the hallmark of many fairly successful benevolant dictatorships. Franco's Spain, the France of DeGaulle and indeed, Castro's Cuba are all examples of rulers who managed to please enough of the people, often enough to die of old age.

For that matter, those who disagreed with our founders as to the necessity for revolution were themselves proven correct - it was indeed possible to work within the system for positive, incremental change. The Commonwealth nations that have not actually established their own Constitutions have indeed evolved into soverign states that seem to me much like the States our founders had in mind, with a very tenious and almost theoretical link to the Queen and Parlement.

Still, our founders may be forgiven for wanting to see that happy day in person - nor can the example of the United States be dismissed as unimportant in that evolution.

Our founders did not see the role of government as being a guarantor of comfort, of privilege or of safety, and I'm afraid there's nothing to indicate they considered embreos, foetuses, or even children "under the age of reason" to be exceptions to a rule that they applied to themselves.

What it does guarantee is your right to act in your own individual interest regardless of what other individuals or groups may think, and forbids the government from imposing broad penalties upon folks for acting as they will, save when those actions have consequences that affect others, and only then in very narrow and strictly tailored circumstances.

Now, my full argument involves a great deal more than the above, but it boils down to a simple question of jurisdiction. Those that must face the consequences of a choice must in justice be permitted to choose what consequences they can best accept. Should the state interfere in this matter, then it becomes incumbent on the state to accept all consequential costs and responsibilities that would otherwise be those of the individual to discharge.

This is not to say that it's outside of the realm of the state to provide a range of options that a majority of people are willing enough to provide for, in hopes that will influence choices in favor of an outcome most would prefer.

But, alas, far too many folks see The State as having the role of punishing folks for "immorality" than rewarding them for acting in ways that makes an ethical life obviously best.

The problem with the abortion debate, and the reason that it is intractable, is that the "pro life" forces are actually presuming the right to interfere with the lives of other individuals on the basis of a claimed, over-riding right they cannot actually take responsibility for, even were they were willing to do so.

Reasonable people, when given the option of supporting polices that make abortion "Legal, safe and rare" where "rare" would be an easily achievable rate of half the number of current abortions, go for the achievable.

For myself, I believe that inasmuch as we have the medical ability to make childbirth as safe an option as an abortion, and the financial wherewithal to support any child not aborted, I feel it a moral imperative to offer those as options to people who have quite reasonable concerns.

I would certainly never, ever force a rape victim to bear a pregnancy to term, much less a victim of incest. But, I do observe that embryo transplants are quite possible. If the goal is to preserve the life of the foetus - why not just offer state-supported embryonic storage and transplant as an alternative to abortion?

After all, a child that a woman cannot support NOW may well be one she'd go to the ends of the earth to have in her thirties.

Moreover, a broad sampling of preserved genetic materials is damn good insurance against a number of entirely-too-foreseeable outcomes.

But this debate is clearly not about choices, or providing alternatives. It's about imposing a consequence - pregnancy - on people who have sex outside of approved contexts and making the pregnancy itself as dangerous as possible, and then, of course, providing as little support for raising the child as possible, even when that would make perfect sense in terms of net social benefit and lowest cost to society in terms of direct spending.

The problem with this position - and many similar positions - is that no matter how desirable it would be to have everyone behave as you would have them behave, manifestly they do not.

There is another fallacious assumption involved in many assaults upon the civil liberties of individuals by currently empowered groups - and that is the right to exert power with impunity.

If I have the power to do so, and a position of athority, the reason seems to go, anyone without the same power and the authority to go with it has "no right" to complain, much less resist. Indeed, I've heard this argument from LGF-level folk repeated almost literally - an argument almost identical to the equally clueless (but thankfully rare) totalitarian Communists. It is the identical presumption; those that have the gold and or guns get to make the rules.

But it is a fallacious assumption. At best, people will only avoid the rules, and the results will be AT BEST, something like Mao's China or the Soviet Union at the height of the Cold War.

The only way to guarentee even the apperance of widespread "good behavior" is some form or another of oppression, and our Founders were students of history and had experienced the whims of the petty, opportunistic tyrants that London saw fit to dispatch to the Colonies; quite possibly in hopes that they would meet a glorious and heroic end at the hands of "savages."

From the center of Empire, empire is often seen as a necessary and advantagious evil. But on the fringes, it's seen for what it is. Both evil, and exploitative, existing for the benifit of people both far away and with concerns that are at best irrelevant to the ambitions and desires of those "governed" by it.

Hence, our Founder's emphasis on the rights of individual and local self-determination.

Our founders - and perhaps as much as a third of the population together with them - chose to say "no." A third of the population, angry enough to take up arms, or support those who did.

Contrast this with George Bush's popularity ratings today, and count yourself blessed that so far, the First Amendment suffices for the needs of the Resistance. In essence, he's managed to alienate two thirds of the population in order to insufficiently please ONE third who wish to impose their will on those who wish to say "no."

On the other hand, we could just shrug, and mind our own business, while acting to demonstrate how well our own moral choices and lifestyle preferences work in practice.

That is precisely what Jesus advised, by the way. Good head on his shoulders, that fellow. It's wise to pay attention to what He had to say - and he had a lot to say about oppressive busybodies such as Romans and Pharasees.

Minding one's own business, while always standing ready to offer a neighbor a hand is an excellent way for both individuals and nations to behave.

In other words, we should be careful to treat each other as gentlemen and gentlewomen, keeping in mind that the halmark of gentles is the capacity to defend their honor and dignity, and the willingness to accept any consequence save dishonor.

And of course, to carry a little surprise or two for those who prove by their sudden aggressions that they do not deserve the fellowship of gentle persons.

Our cousins, the British, saw the role of the ungentle and unwashed as a fungible commodity, to settle the Americas, and later on, Austrialia.

Having sprung in part from the loins of such folk, and enduring the travails 200 odd years of that had brought them, our Founders saw a far less disruptive role for such presumptious parasites, regardless of their apparent social standing.

Fertilizer. As the logical, forseeable and predictable consequence of their own choices.

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Andrew said...

"At the time, such a guarantee was patently absurd; death was common, infant mortality ran about, what, 40 or 50 percent? Death in childbirth was common enough to be a social constant. One cannot assure a "right" to life in the face of the disagreement of Providence and Nature."

Abortion does not involve Providence and Nature. It's a willful act of taking a potential life.

Bob King said...

Indeed it is.

However, the mother has an *actual* life, actual responsibilities, actual relationships and all of those things may, in her judgment, trump the value of this life.

It's an ethical dilemma, to be sure. But it's the mother's dilemma, not yours nor mine.

Besides, those who seem quite willing to see actual living people die, or be shot dead, to prevent this crime; well, I question their ethics and morality.

TS said...

There is no ethical dilemma. No person has the right to take another human life. If the life in question is "alive", which it must be by definition, then it is actual.

The argument that the Constitution cannot guarantee life against Providence and nature is misplaced. We speak of political liberties and rights, public law and policy, which, though grounded in Providence and nature, are guarantees against the acts and often misbegotten intentions of men and women.

The Founding Fathers debated whether to list all the rights they possibly could. They did not want a list to make other rights not enumerated excluded. Since rights pertain to human beings, it can hardly be a surprise that the Constitution does not specify the right to life. I can hear the gasp of astonishment the FFs would have exhaled had they heard someone say the Constitution they crafted was not meant to represent a right to life, especially after they had so eloquently and forcefully made that case in the Declaration.

There is no right to kill an unborn child because murder, even in that day, was against the law, be it political, constitutional, biblical, natural, philosophical, etc. To contrive a right to an abortion, one has to fudge the issue by declaring, against all medical science and a good dose of common sense, that life doesn't begin at conception or that the "thing" inside a woman isn't a "person."

Bob King said...

I find it amusing that you feel yourself justified in saying that it is "common sense" that there is no "ethical dilemma" and then go on to say that it's obvious that human life begins at conception.

That is a very modern conceit. But I will simply not argue that point - I'm sure others have and better in the three moments I consider this worth...

The foetus who will become a child does so, by definition, by means of the willing support of the mother. Any time YOUR ethics try to define THAT relationship - any time you think you even have the right to COMMENT about it - is the moment I stop listening. you are wrong, ab initio.

Now, should you wish to rationally speak of reducing abortions and improving the health and welfare of children and the health of mothers so their children are fine, strong and welcome in this world, by all means, let us discuss that.

...but that is the conspicuously absent part of this argument.

EVA said...

Great comment, Andrew, with one correction: Abortion is a willful act of taking an existing human life, separate and distinct from its parents.


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