Where does the Constitution guarantee the right to life?

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

Abortion Battle Raging

By rob on July 20, 2005 at 11:07 AM

12 Comments

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.

tag: abortion, choice, What Would Jesus Do, abortion debate, constitution, constitutional, rationality, reason, ethics

Ken Lay, Free Markets and "Deregulation."

"THE AL CAPONE OF ELECTRICITY
Ken Lay Will Get Away with His Real Crimes
By GREG PALAST

In the 1930s, a character named Samuel Insull created the first giant power holding companies. Insull played fast and loose with his account books, fast and loose with cash for politicians and pocketed millions by gouging electricity customers. Insull was indicted, like Lay, for crimes against his stockholders.

In 1933, President Roosevelt made Insull's power piracy a crime. FDR signed the Public Utility Holding Company Act and laws that capped the profit of electricity monopolies. The act required them to keep lights on by accounting for all maintenance expenses, barred "trading" electricity and, most important, banned donations by the power giants to politicians.

Fast-forward to January 2001. The George W. Bush administration, within 72 hours of his inauguration, issued an executive order lifting the Clinton Energy Department's effective ban on speculative trading in the California power market. The state was still in crisis, facing blackouts and 300 percent increases in power bills, the result of "deregulating" its electric system, as first suggested by Lay.

Instead of a "free" market, California's electricity bidding system became a fixed casino where Lay's operatives and a tight-knit cabal of corporate cronies jacked up prices through such tricks as "death star," "ricochet" and "kilowatt laundering."

In one instance, Enron "sold" the state 500 megawatts of electricity to go over a 15-megawatt line. Enron knew that sending that much power through those wires would have burned them to a crisp. To prevent this Enron-designed blackout, the state scrambled for other sources of electricity, which Enron and friends sold them at a big mark-up.

Now, you may think it odd that a Libertarian, Free-Market Capitalist such as I would source Greg Palast. But of course, what he's speaking of is the very opposite of free markets.

A "free market" is one where everyone is free to participate, one where consumers have choices and providers do too. The case of Enron is a case not unlike that of a small town with one butcher - who also inspects the scales for accuracy.

Who knows if HIS scales are accurate. He does. And he'll be sure to tell you so. Can you trust him?

A free market is not one that is "deregulated;" a free market is one that is regulated in order to ensure that it is fair. Not only is it fair, it's verifiably fair and secure, immune to the sorts of market manipulation Ken Lay is ultimately responsible for.

But of late, "Free Markets" have come to be equated with "Lazez-Faire" which means, in essence, no assurance against predatory or manipulative practices. If one firm "corners the market" on a commodity and can therefore choose to sell at whatever price they like, this is all well and good according to Right-wing economists of simple minds.

Whenever a powerful entity interferes with the market in order to gain it's own end, exclusive of all others - whether that end is socialistic or capitalistic, whether the ideals be purely altruistic or pure greed, the results are much the same. Competition is squeezed out, and once the market has been served by those who understand the rules of the game, why, only they can play and they become the rules comittee.

The energy market is not like the diamond trade, where it matters little in any ultimate sense if diamonds are really worth what they cost. Nobody "needs" an investment-grade diamond.

But you do need to be able to access energy at a fair price. It' s not just a personal priority - it's a major economic factor, one so critical to our nation's survival that it must be considered a national security issue if that term is to have any real meaning at all.

It is simply not permissible for corporations to be involved in creating artificial shortages in order to boost their profits, nor is collusion with government to fix prices and determine energy policy allowable. What Enron did was evil; theft and extortion on a vast scale, crippling and beggaring an entire state.

Free markets can only work if there is an assurance that those who refuse to play by the rules of the market are punished, and furthermore, that the market is well-policed so that the economic equivalent of pickpockets and armed robbers are discouraged to the greatest possible degree.

That is what a free market is. "Freedom" is not merely freedom from oppressive taxation or burdonsome regulation. It is also a markete where fraud and graft are not the defining characteristics - for these factors bring extra costs and inflate prices just the same.

These things are "the price of doing business," as if they were the same sort of thing as labor cost, or materials or admistrative overhead. But really, they are taxes. It may vary who it is that you pay it to, but the important thing is that neither you nor your customers gain any direct advantage. In the case of legitimate taxes, there are of course indirect benifits. But in the eventuality that you are in effect paying taxes to a larger competetor in order to continue to exist; there is no such reward.

It's wise to consider all such imposed costs to be the same; any price you must pay in order to do buisiness, either the business of making a living, or simply the business of living can be considered a "tax."

The only ones who get a square deal in the energy marketplace today are those with a great number of guns - and the soldiers to use them. Consider how many energy firms have stakes in private security firms!

But there are alternatives. Our current energy system is terribly wasteful and there is both money and security to be gained in raising efficiencies and turning "pollutants" into profit centers. "Greenhouse Gases" are bad for global warming - but that's because they belong in greenhouses, reducing the cost of fuel, food and transportation as a net result of an entirely new industry, one without the high overheads imposed by the corruption of the petrochemical bedfellowships.

When greed, corruption and uncertain, politically-influenced supply-chain issues threaten the petrochemical-based energy chain, it makes sense to start looking seriously at viable alternatives. Biofuels, for instance, have become increasingly attractive, especially when they can be generated with the aid of increasingly regulated CO2 emissions. What was a pure loss becomes pure profit by means of a deeply elegant solution.

Consider putting your Green where it will grow and prosper. And consider how ultimately, consumers bypass markets that have become corrupted.

It amuses me how much of this technology started out in hydroponic "grow houses" that emerged as a reaction to "the war on drugs" making it difficult and dangerous to simply let marijuana grow naturally.

Free markets, supply and demand, and of course, an environment that discourages large groups dominating the industry served us well.

But then, our vices tend to drive demand and innovation far more than any virtue.



tag: Ken Lay, enronpolicy, politics, big oil, renewable resources, oil war, opec, oil profits, war profiteering, fuel prices, speculation, greg palast, Haliburton

Rumsfeld Reveals Split Over Interrogations

Rumsfeld Reveals Split Over Interrogations

WASHINGTON -- Defense Secretary Donald H. Rumsfeld said for the first time Wednesday that officials are at odds over whether a new Army manual should endorse different interrogation techniques for enemy insurgents than are allowed for regular prisoners of war.

The debate hinges on whether suspected terrorists or other insurgents can be treated more severely than captured members of an enemy army. There are concerns such a distinction could fly in the face of a law enacted last year, pressed by Sen. John McCain, R-Ariz., that explicitly banned cruel, inhuman or degrading treatment of prisoners by U.S. troops.

"There is a debate over the difference between a prisoner of war under the Geneva Convention and an unlawful combatant in a situation that is different from the situation envisioned by the Geneva Convention," Rumsfeld told the Senate Appropriations Committee's defense subcommittee. "And those issues are being wrestled with at the present time."

Ok, what's to wrestle with? The answer is "no," if it traduces the Geneva Convention or international law.

Not because I'm suggesting "tying the hands of our troops," far from it. Not because I'm opposed to using psycological impact to get what we want; reserving my opinion on what we should want, which is an entirely separate discussion.

Torture, due to it's nature and the requirement for moral compromise on the part of armies and prosecutors, does far more harm than good. It is perhaps arguable that in extraordinary cases a partularly skilled use of torture may be effective - but in large part that is due to the unexpectedness of the technique.

If torture is expected, the potential targets are prepared for it, and it's effectiveness is largely lost, while the toxic side-effects continue unabated.

Rumsfeld is in a position to know the latter, and if he won't tell you, there are any number of people fresh on Civvy Street to tell you.

The Geneva Convention does not exist to protect prisoners of war, so much as it exists to protect future prisoners of war. It is a gentlman's agreement to act respectfully toward one another for reasons of clear self-interest.

In the land of tit-for-tat, it's easy for matters to esculate. Passions run high in battle, and prisoners are often a severe tactical inconvenence. They can even become a severe strain on resources. Then of course there is the strong desire to find out any tactical information the prioner has before it becomes useless.

What is sauce for the goose is sauce for the gander, the paradigm is the same for both sides, regardless of what semantic games are played about the distinctions between irregular forces, insurgencies and terrorists; Prisoners of War versus "enemy combatants," we must remember that people react in broadly predictable ways, and broad experience with those ways led to the Geneva Accords in the first place.

We ignore them at our peril.

The evident lack of respect for the Geneva Conventions has always been a very stout club to use, both in terms of propaganda and in terms of international debates. Terror tactics - and the promise of torture, or even "stressful interrogations" - raises the stakes in any battlefield situation. People who would prefer death to capture can make the price of victory bitter indeed.

If you doubt me, read a few veteran's memoirs of Iwo Jima.

It is foolish in the extreme to encourage a perspective that is already well-entrenched in the culture.

No, the proper treatment of prisoners of war - which is what everone in Gitmo and all other "in country" and extraterratorial prisons are, de-facto, is to do something surprising and counter-intuitive.

When people are prepared for stress, they are not prepared to be treated respetfully. Nor are they expected to be used as examples of and witesses to a superior ethical system.

Our Dear Leader and his Glee Club make a big fat hairy deal about how this is a Clash of Cultures. Well then. Let us look at the logical implications of that.

Cultures are composed of people with shared values. And as a matter of historical and inarguable fact, a superior culture will defeat and transform an inferior one.

Take, for instance, the history of China.

Take, for instance, the history of India.

Take, for instance, the history of Greece and Rome.

Take, for instance, the histry of the Danes and the Celts, the Angles and the Saxons.

If you read those histories you will find that within one generation, perhaps two, it becomes irrelevant as to which side had the best warriers and the most successful generals.

It's the culture that works best for ordinary people, the one that pays closest attention to the everyday value of people and practical necessities. In a word, the one that concentrates on the here and now and leaves the fussing over things like Clashes of Culture and Eschatology to those content to sit in the moral eqivalant of dank and dusty caves, exploring personal rightiousness as a competitive sport.

It is again a fact of history, again, that cultures dominated by religiosity drive away those who would otherwise move the culture forward. Consider the effect of the religious wars of Europe on those countries who engaged actively, as opposed to those who considered them to be a fact of life in the field of international affairs, to be avoided at a profit.

Of course, open warfare is hardly the best arena for cultural warfare. But it's probably the only one where men (and a few testosterone-poisoned women) with no patience for complex issues and nuanced responses feel any assurance of personal achievement.

But in the end, the trick has always been to win the peace. The war is always the easy part. If you doubt this - consider how many Mongols you see in positions of power within China, compared to ethnic Han.

Or consider the values and philosophy of Greece - taken home in triumph to barbarian Rome.

How many truly Roman values do we teach our children in the better schools?

But Greek names, Aristotle, Archemedes, Pythagorous and many more - continue in large part to influence western civilization.

So who won?

Who should have won?

Who WILL win?

I think we define this as a Clash of Cultures at our peril, for the subculture that is calling for the clash has little if any evident value to a lasting civilization.

Such civilizations require a little more reward for their valued citizens than "pie in the sky by and by."