Enter your email address to receive updates by email:

subscribe in a reader like my facebook page follow me on twitter Image Map
Podcast Message Line: 512-222-3389
Logos Catholic Bible Software

« On The Other Hand . . . | Main | The Antarctic Night of the Soul »

August 23, 2007

Comments

Jarnor23

Yes.

SDG

"My view is that the Supreme Court has made an error in saying at the national level one size fits all for the whole nation," Romney told Nevada political columnist Jon Ralston in a televised interview.

Yeah, see, this is ambiguous. Does this mean "It's an error to say at the national level one size fits all for the whole nation," or does it mean "It's an error for the Supreme Court to say at the national level one size fits all for the whole nation"? IOW, would it be different if the legislature said one size fits all?

I have to admit the emphasis sounds as if Romney is making a federalist point, not an anti–judicial activism point. In which case it was a blunder (best case scenario), or else he's just not on board (maybe more likely).

Blackadder

I'm not sure I see the blunder. Where is it written that to be pro-life one has to favor a federal abortion ban? There's no general federal ban on murder, any federal ban on abortion would be of dubious constitutionality.

SDG

I'm not sure I see the blunder. Where is it written that to be pro-life one has to favor a federal abortion ban? There's no general federal ban on murder, any federal ban on abortion would be of dubious constitutionality.

Is abolition of dubious constitutionality? Part of the government's job description is to protect the lives of its citizens. The federal government did not leave slavery up to individual states. Ultimately, abortion shouldn't be either.

Every state and territory in the US has laws against murder, so in general murder is dealt with at the state level, although IIRC in some cases murder is dealt with under federal law, such as when no state has jurisdiction (e.g., in Washington, DC).

I'm sure readers who actually know something about law will have lots of useful stuff to say about this.

Blackadder

Was abolition of dubious constitutionality? No. When you pass a constitutional amendment prohibiting slavery, you've pretty much settled that issue. Absent an amendment, a federal ban on slavery generally (instead of just in federal territories) would have been constitutionality dubious. Which is no doubt one of the reasons such a ban was never proposed.

I am a lawyer, by the way.

Matheus F. Ticiani
You decide.

Jimmy, were you thinking about "Fr. You Decide"?

SDG

Heh. Just to clarify, Blackadder, when I said "readers who actually know something about law," I meant "as opposed to me," not "as opposed to you." :-D Carry on.

Matheus F. Ticiani

By the way, SDG, have you read the message I left on Decent Films?

Blackadder

SDG,

Ah. My mistake.

SDG

Blackadder: No, no, it's a useful clarification. Whether or not I know anything, it's relevant to know that you do.

Matheus: Not sure, when did you send it? I did read my messages this morning but I won't get a chance to check them again until tonight. Will be doing some correspondence tonight and early tomorrow AM.

T Shaffer

Why are we criticizing Romney because he wants to end Roe V. Wade? Even if he is flip-flopping between these two positions he is at least as(if not more) pro-life as any other VIABLE(Huckabee is not) candidate in the race. So, why the criticism? I hate to say this but I think if he were Catholic, Protestant, or even Jewish we wouldn't be having this discussion.

Matheus F. Ticiani

I sent it almost 2 weeks ago. In the message itself I mentioned that I tried to send it to your old e-mail (SDG at decentfilms.com), but it came back.

SDG

Matheus: Ah, I think I remember. As you might guess I'm way behind in my correspondence. Will try to write back by tomorrow.

Matheus F. Ticiani

OK, thanks! I'm in no hurry!

francis 03

This law student also thinks Blackadder is correct. People of Jimmy's opinions especially should note that Justices Scalia and Thomas both expressed reservations about the constitutionality of the federal partial-birth abortion ban in the recent Carhart opinion-- not because they believe in any right to abortion, but because they just don't think the federal government has any constitutional authorization to be regulating that kind of thing. Any complete federal abortion ban would run into similar problems.

In fact, when Romney talks about being in favor of legislation to apply the 14th Amendment's protections to the unborn, he's very clearly crossing a line that the Supreme Court just won't let him cross. In modern times it's the courts, NOT Congress or the President, who say what the Constitution means-- or at least the latter can't "reverse" the former's decisions about constitutional interpretation. (The best example is the Religious Freedom Restoration Act controversy, with the main case being City of Boerne v. Flores, which incidentally was about a Catholic parish's right to renovate its historic-landmark church building).

A constitutional amendment, on the other hand, would work just fine. Anyone who is consistently pro-life on principle should have no objection to one. But there's a pragmatic aspect of whether it's worth supporting or even talking about something that just aint' gonna happen anytime soon.

On the whole, Romney is a mixed bag-- and would still be even if he were Catholic or Protestant. He seems to have genuine pro-life tendencies, but I'm not seeing much of an overarching vision from him.

Jeff

I'll take it. Let the states make the decision; at least some abortions would be prevented. Since the Constitution doesn't address the issue, it is a state decision.

francis 03

I wouldn't go quite so far. Let's say it's a gray area-- in this era of the near-omnipotent federal government, nothing is clearly outside its purview. But you can make a respectable case that abortion (and all murder) should be.

Different

I think this is just some unintentional ambiguity.

He answered the question on Roe V. Wade. In other interviews (as noted in the article) he has proclaimed his support for a Human Life Amendment consistent with the Republican Party Platform.

That being said, was he always pro-life? As governor of Mass. was he pro-life?

Go Fred Thompson!

matt

The constitution and amendments recognize the right to life of every person in the United States. The definition of person is in the purview of the Supreme Court is it not? Would one argue for states right to define certain classes of human beings as non-persons? Of course not, that's what abortion does, it defines a human being as a non-person. Biological science is clear that a human zygote/embryo/fetus etc. is a human being in an early stage of life.

I'm not so sure that Romney's one-size-doesn't-fit-all position sound too ambiguous to me. It's pretty clear. He does not favor a one-size-fits-all solution, as one who is truly pro-life must. Now, when it comes to the General Election, given Romney vs. Hillary Rodham and/or B. Hussein Obama the lesser evil is obviously Romney. Catholic moral teaching is clear that if there's not a viable pro-life candidate one may vote for the candidate who appears least opposed to the true pro-life position.

On the other hand, there are many reasons to vote for a truly pro-life candidate in the primaries including their viability, and the fact that the more delagates these candidates win the more power the pro-life cause will have at the convention and in the subsequent government. We must develop a large block of truly pro-life voters to show that it's a politically viable position for those who appear squishy on the matter (Romney, Thompson, McCain, many others on both sides).

God Bless,

Matt

francis 03

Matt:

1) The 14th Amendment Constitution protects the right to life against the states. Interpreting it to require the states to protect their citizens lives from other citizens requires the kind of imaginative reading that got us the "right to an abortion" in the first place.

2) Why isn't it just as pro-life to want every state to pass pro-life legislation as it is to want a one-size-fits-all federal solution? If the Democrats were firmly entrenched in Congress I would think the federalist solution would be the better one.

Mike

That being said, was he always pro-life? As governor of Mass. was he pro-life?

Go Fred Thompson!

Um, was Fred Thompson always pro-life?

http://www.lifenews.com/int356.html

I, for now, will be throwing my weight behind Huckabee. For now. I think the only thing that's holding him back as a viable candidate is Sam Brownback.

Initially, I was excited about Brownback's campaign (despite his small chance at winning), but unfortunately, he has disappointed me with his poor showing in the debates and his ugly attacking campaign. Huckabee, on the other hand, has impressed me in the debates and on social issues. His strong showing in Iowa has given me hope that he might be a dark horse against the mediocre McCain, Giuliani, Thompson, and Romney.

Different

Here is a quote from the Lifenews site on Fred Thompson:

"Despite his lobbying or legal work for the pro-abortion group, Thompson voted consistently in the Senate during his tenure for pro-life bills and left with a 100% pro-life voting record on abortion-related issues. In recent months leading up to a potential candidacy for the GOP nomination for president, Thompson has repeatedly said he is pro-life and supports the reversal of Roe v. Wade so states can once again prohibit abortions. The firm's current chairman, Marc Fleischaker, told the Times that “Fred was being a good colleague by helping out one of the firm's partner.” Thompson himself has responded to the controversy saying an attorneys work must not be misinterpreted for his personal views and beliefs."

He is without a doubt, the most pro-life candidate (who can actually win) in the Republican field. Pro-lifers would be wise to consolidate their votes behind him in the republican primary.

William

Ron Paul is the most pro-life candidate of the bunch.

Ed Peters

The protection of innocent hman life should, under almost all circumstances, be a matter of concern for the States, not Federal City.

Publius

So, why the criticism?

Because Mitt Romney's conversion from being a pro-choice North Eastern moderate-to-liberal Republican is very recent and was obviously motivated by his presidential ambitions, so when he shows himself changing his position to fit his audience it is highly relevant.

Not that even cynical conversions can't yield good results. George Bush Sr., despite being perpetually raked over the coals over Souter, does have the most pro-life SCOTUS record of any Republican president (50%, as opposed to 33% for Reagan, 0% for Ford, 25% for Nixon, and 0% for Eisenhower; W's justices have yet to be tested on Roe itself). Among presidents in general, only JFK surpasses him there (at 100%), and then (probably) only because Justice Goldberg retired early.

I hate to say this but I think if he were Catholic, Protestant, or even Jewish we wouldn't be having this discussion.

Wrong. And really, using his Mormonism as a shield from criticism as many others use a candidate's race ("Oh, you wouldn't be saying that if he were white.") is hardly a valid line of argumentation.

Blackadder

I don't get the obsession with whether a candidate has always been pro-life. Why should this matter? What matters is what they will do as President, not what they did or thought at some previous point in time.

Tim J.

Well, what people have done in the recent past may have more than a little bearing on what they will do in the future.

Would I hire someone who was addicted to crystal meth 6 months ago to fix my car? Sure. Would I hire them to sit my kids?... not on your life. This is not to cast aspersions on those who are doing their best to improve themselves. Kicking bad habits and addictions - changing your lifestyle - is hard and ought to be praised and encouraged. But it doesn't erase the past. One has to look at the odds.

Same with political candidates. I won't say that Romney's change of heart is insincere, but I will say that we have no real assurance yet that it IS genuine. We would just have to take his word for it. Pardon me if I have a hard time taking presidential hopefuls at their word.

You can't really tell what anyone will do as president until they ARE president. As Hillary has been president before, we can pretty well guess what she will do. Heh.

Blackadder

In the final analysis, it doesn't much matter whether Romney's change of heart was sincere (though I'm inclined to think that it was). He's committed himself on the issue, and it would be politically impossible for him to reverse himself on the issue again.

There are plenty of examples of Presidential candidates who have changed their positions on abortion. I don't know of any who went back to their old position once they got elected.

Tim J.

"He's committed himself on the issue, and it would be politically impossible for him to reverse himself on the issue again."

"Read. My. Lips. No new taxes."
-George H. W. Bush

Blackadder

Yes, and he lost re-election, didn't he?

T Shaffer

Tim J.

And that reversal cost George HW Bush the 1992 election.

It is accurate to say about Romney that:
"He's committed himself on the issue, and it would be politically impossible for him to reverse himself on the issue again."

The key word there is "politically"


Publius,

You wrote:
"using his Mormonism as a shield from criticism as many others use a candidate's race ("Oh, you wouldn't be saying that if he were white.") is hardly a valid line of argumentation."

I disagree. When Giuliani claimed that he would appoint "strict constructionist judges" if elected, I heard nary a peep from any conservative bloggers about his sincerity. But if Romney has the slightest inconsistency in any of his statements it's immediately jumped upon. There is an anti-LDS bias against Romney, which is fine if you are a religious bigot. But can we just quit pretending to dislike Romney for other reasons?


T Shaffer

Sorry, I failed to claim that last post. For the record, it was me.

francis 03

Shaffer-- could that be because most conservative bloggers are going to oppose Giuliani no matter what he says, so his sincerity in saying it is rather a moot point?

And I think I disagree that the only reason you might be opposed to having a Mormon in the White House is because of religious bigotry. I haven't heard anyone make a really convincing argument against it, but then I haven't heard anyone talk about it very much at all. Until then, it seems perfectly rational for voters to be wary of a candidate who belongs to a relatively obscure, outside-the-mainstream faith held by only a very small mninority of Americans. That's not bigotry; it's approaching the unknown with caution, which is generally a very wise thing to do.

SDG

Right, Francis. Besides, Mormons have two heads. That's just not right.*

SDG

*(totally absurdist humor with absolutely no serious point whatsoever)

francis 03

: O

: O

Two faces, for the occasion. So "no serious point" means that the original "right, Francis" was not sarcastic? Or was it? ...

SDG

correct, and nope, in that order. :-)

Tim J.

"...most conservative bloggers are going to oppose Giuliani no matter what he says, so his sincerity in saying it is rather a moot point..."

'Zackly. I don't know any real conservatives who have ever taken Giuliani seriously.

He's a pro-war Hillary in a coat and tie.

Father Martin Fox

About Extending the 14th Amendment to unborn children...

Many are unfamiliar with this approach, let me explain what it's about, and the basis for confidence that it may work.

The basis for pursuing legislation to declare unborn children persons under the 14th Amendment is the U.S. Supreme Court, in -- of all things -- its infamous Roe v. Wade decision!

In that decision, the High Court said it could not determine whether unborn children were persons, or when life begins. It did say, however, that were the personhood of the unborn child established, the argument for abortion as a matter of privacy "would collapse."

Note: the High Court did not say the 14th Amendment excluded unborn children as persons; it has, for the time being, left the matter unresolved. Also, the 14th Amendment does, in fact, say that CONGRESS shall have power to implement this Amendment by legislation.

So, legislation is pending to do precisely that: the Life at Conception Act, introduced by Rep. Duncan Hunter (yep, that Duncan Hunter).

Here's some brief info on the bill: National Pro Life Alliance.

Publius

Note: the High Court did not say the 14th Amendment excluded unborn children as persons; it has, for the time being, left the matter unresolved. Also, the 14th Amendment does, in fact, say that CONGRESS shall have power to implement this Amendment by legislation.

Even assuming that later precedent hasn't closed that loophole, do you really expect that Tony Kennedy would sign on to an opinion essentially outlawing abortion nationwide? Considering Scalia has long maintained that the constitution is silent on abortion, I'm dubious as to whether even he would sign on.

Then, of course, there is the impossibility of enforcing the ruling in pro-choice states. The courts can easily make something legal (since their say-so is needed to put anyone in jail, unless you want to shred the constitution and start subjecting American citizens to drumhead trials), but it can't make something illegal with the co-operation of at least the executive branch. If the cops won't arrest abortionists, the prosecutors won't prosecute them, the citizens won't convict them, and/or the jailers won't jail them, then the Supreme Court can hold its breath and stomp up and down until it is blue in the face and nothing will happen. Which is to say nothing of gubernatorial pardons and clemency.

"Justice Marshall has made his decision, now let him enforce it!" can't come close to working with Roe (unless we turn the U.S. into a dictatorship, as some wanted in the Schiavo affair), but it sure as heck would work with the opposite of Roe.

So:

1) It will never happen.

2) Even if it did, criminalization of abortion via Supreme Court precedent would likely not be enforced in states that wouldn't have banned, or severely restricted, abortion in the first place.

3) Banning abortion through the courts (even following the lead of Congress) would really, really tick off a whole lot of people, including quite a few on our side.

Taken together those three points can be condensed into two words: Pyrrhic victory.

matt

Francis/Ed,

The 14th Amendment Constitution protects the right to life against the states. Interpreting it to require the states to protect their citizens lives from other citizens requires the kind of imaginative reading that got us the "right to an abortion" in the first place.

That's odd. So if a state decided to remove the law of murder from applying blacks or gays, then it would not be a matter for the Supreme Court to adjudicate? Hmmm.... I think you're mistaken, but I'm not a constitutional expert... are you?


2) Why isn't it just as pro-life to want every state to pass pro-life legislation as it is to want a one-size-fits-all federal solution?

Of course it's pro-life to seek legislation in every state, but this is a nation and if there is grave injustice in one state it affects others, especially with regard to the most defenseless victims. The same right to protection of one's life ought to apply to all in the nation, so one-size-does-fit-all. Will you argue that there should be more or less protection in different states according to the preference of the citizens?

If the Democrats were firmly entrenched in Congress I would think the federalist solution would be the better one.

Of course, but that is a tactic, not the strategic goal, which for any Catholic is the protection of innocent life by ALL levels of governments. I'm sure I saw something to that effect from the Holy Father.

The protection of innocent h[u]man life should, under almost all circumstances, be a matter of concern for the States, not Federal City.

The exception to that circumstances must be when the states neglect their obligation to do so.

I agree with Fr. Fox. The issue is defining that a person means any human being at any stage of development, that is the only reasonable definition, and would provide equal protection for every human being as the constitution with amendments was intended to do.


God Bless,

Matt

Jason in SA

"(The best example is the Religious Freedom Restoration Act controversy, with the main case being City of Boerne v. Flores, which incidentally was about a Catholic parish's right to renovate its historic-landmark church building)."

That's right up the road from me here in San Antonio. They ruined that church. It's a debacle. (But it's a good read in Con Law.)

Mary

Mary

deanswife

Ron Paul is not squishy. And he has a huge internet presence, even if the MSM is ignoring him.

http://www.house.gov/paul/

Different

Ron Paul might be a nice guy and very pro-life, but he will never ever secure the republican nomination. In light of this, it is important for every pro-life voter to get behind the most pro-life candidate and support him. If the pro-life contingent splits up their votes we will have someone like Giuliani.

Vote for Fred

Peace of mind and personal centeredness are the most necessary qualities in a president. Meditation is necessary to prevent annihilation. Vote for the Natural Law party candidate for president.

Blackadder

Forget Ron Paul, Fred, or even that Natural Law guy. Vote Dave Barry:

http://www.davebarry.com/president/dave2k/thispage.htm?issues.htm

matt

Publius,

let's try an experiment, I'll replace the word abortion with killing seniors. The analogy is perfect, we are dealing with the killing of human beings at a certain stage of development in which they are often an inconvenience to those responsible for them. Let's see how much your analysis holds water.

Note: the High Court did not say the 14th Amendment excluded killing seniors as persons; it has, for the time being, left the matter unresolved. Also, the 14th Amendment does, in fact, say that CONGRESS shall have power to implement this Amendment by legislation.

Even assuming that later precedent hasn't closed that loophole, do you really expect that Tony Kennedy would sign on to an opinion essentially outlawing killing seniors nationwide? Considering Scalia has long maintained that the constitution is silent on killing seniors, I'm dubious as to whether even he would sign on.

Then, of course, there is the impossibility of enforcing the ruling in pro-killing seniors states. The courts can easily make something legal (since their say-so is needed to put anyone in jail, unless you want to shred the constitution and start subjecting American citizens to drumhead trials), but it can't make something illegal with the co-operation of at least the executive branch. If the cops won't arrest senior killers, the prosecutors won't prosecute them, the citizens won't convict them, and/or the jailers won't jail them, then the Supreme Court can hold its breath and stomp up and down until it is blue in the face and nothing will happen. Which is to say nothing of gubernatorial pardons and clemency.

"Justice Marshall has made his decision, now let him enforce it!" can't come close to working with Roe (unless we turn the U.S. into a dictatorship, as some wanted in the Schiavo affair), but it sure as heck would work with the opposite of Roe.

So:

1) It will never happen.

2) Even if it did, criminalization of killing seniors via Supreme Court precedent would likely not be enforced in states that wouldn't have banned, or severely restricted, killing seniors in the first place.

3) Banning killing seniors through the courts (even following the lead of Congress) would really, really tick off a whole lot of people, including quite a few on our side.

Taken together those three points can be condensed into two words: Pyrrhic victory.

Posted by: Publius | Aug 23, 2007 7:23:33 PM

What say you Publius? Can we start a successful movement for euthanizing seniors?

Again, this is not about banning abortion, but recognizing that we must define "person" to apply to every human being, and not based on their race, creed, or stage of development.

As to your point about enforcement, that is a moot point, right is right even if it's not going to be enforced because of those who violate their oaths of office. I also doubt your analysis is completely accurate. Laxidasical enforcement is one thing, what you describe is more akin to anarchy, and is not likely in a nation which still holds some degree of respect for the rule of law. Many of the people you are referring to (>60%) already believe that abortion ought to be banned except in cases so rare they represent less than 3% of the actual abortions which takes place. Frankly, if there is nullification in those few cases, it would not constitute a widespread affront to the rule of law, as the same happens in other cases when the accused is a sympathetic figure to the jury (OJ for example).

Also your perspective on Scalias comment that the constitution is silent on abortion, is moot, he also knows it is silent on killing seniors, but would never consider it to not protect seniors the same way it protects anyone else, and so would likely consider it to apply in the same sense to the unborn.

Also your reference to Schiavo is absurd, attempting to prevent an innocent person being killed by a person who doesn't have their best interest at heart is not a characteristic of a dictatorship... on the other hand, allowing a court to order the killer to be protected by the police in committing the murder sure sounds like it.

Matt

Publius

What say you Publius? Can we start a successful movement for euthanizing seniors?

As I pointed out in my own comment boxes recently, there is a huge difference in what actions are appropriate in a climate where a moral abomination is legally protected than in one where it is legally prohibited. Not supporting Quixotic schemes to stop an evil that is legal (and which will likely not only fail, but make it harder to stop the evil in a more incrementalist way) is not the same as permitting an evil that is already illegal. Voting for someone who supports the repeal of the 13th amendment in 2007 is absurd. Voting for someone who, while opposing slavery in his own state and opposing the expansion of slavery federally, but not quite supporting an anti-slavery amendment in the 1850s is not.

Laxidasical enforcement is one thing, what you describe is more akin to anarchy, and is not likely in a nation which still holds some degree of respect for the rule of law.

Perhaps a bit of civil disobedience, but hardly anarchy. There are all sorts of places where morality-based laws are not enforced (e.g., drug laws in places like Berkeley and prostitution laws in many places). "But abortion is different!" Yes, but pro-choicers disagree and would act accordingly. Planned Parenthood already routinely violates mandatory reporting laws and largely gets away with it. How much moreso when the law is judicially-derived?

Again: there would be no law banning abortion. The act proposed doesn't ban abortion under the federal code (it would be much better if it did, actually, though still quixotic and doomed to failure at this point). What it does is lay the groundwork for the Supreme Court to mandate that abortion be criminalized. I can totally see pro-choice states considering that an oppressive and unjust ruling and not co-operating. As I noted before, SCOTUS would need co-operation on many different levels of government to make any sort of ban on abortion effective.

Also your perspective on Scalias comment that the constitution is silent on abortion, is moot, he also knows it is silent on killing seniors, but would never consider it to not protect seniors the same way it protects anyone else, and so would likely consider it to apply in the same sense to the unborn.

No. If Scalia thought that the constitution protected the unborn, he wouldn't have said the constitution is silent on the question. IIRC, he has specifically said that states are free to ban abortion OR NOT under the constitution.

Also your reference to Schiavo is absurd, attempting to prevent an innocent person being killed by a person who doesn't have their best interest at heart is not a characteristic of a dictatorship... on the other hand, allowing a court to order the killer to be protected by the police in committing the murder sure sounds like it.

I was referring not to the Bushes or Congress or the Florida legislature, but to a few commenters here and there that basically blamed the Bushes for Schiavo's murder. They wanted them to send in troops with no legal mandate to seize the nursing home and keep Terri in custody forever no matter what the courts said. THAT is what I mean by people wanting to turn the country into a dictatorship.

matt

Publius,

thanks for clarifying, what you're talking about is the right tactic, not the right ultimate goal, and that's an important distinction.

As to the accuracy of your judgement on how "quixotic" this particular approach would be, I don't agree entirely. If the supreme court would recognize that all human beings are persons, I wouldn't see that as an instant panacea, the road would still be long to reorganize the existing state and federal regulations to be in conformity to it, obviously this would take a long time and may not be successful in some areas for many years.

I wasn't familiar with the discussion on Shiavo that you are referring to, and of course, it would be a greater harm to take such steps and would not be acceptable. On the other hand, it's possible that some other steps could have been taken by the executive, which may or may not have been successful. I do think that a case like that could have permit some "sneaky tactics", but federal troops would result in a huge crisis.

The point is whether or not Romney considers a state by state solution a tactic or the ultimate goal, and, if it is indeed just a tactic whether or not he misled the public in his statement which implies it is the goal. Frankly, I think Romney's change is mostly political, and perhaps squishy, so I don't consider him truly pro-life, I would prefer a candidate with stronger view. On the other hand, he is clearly far better than Hillary or anything else from the party of death.

By the way, we are all clear that George Bush is not truly pro-life although he has (potentially) advanced the goals of pro-life significantly in many of his appointments and policies.

Matt

Father Martin Fox

Publius:

I was not talking about the Supreme Court declaring unborn children persons, but about the Congress enacting legislation that declares them persons, under the 14th Amendment.

The issue subsequent to that would be whether the Supreme Court would uphold the law (assuming Congress did not deny the court jurisdiction, which Congress can do as easily as the other legislation; both are pending, both are a long way from becoming law).

My original post was responding to those who were curious about the whole 14th Amendment angle in the first place.

I am not a constitutional lawyer (is there anyone here who is, please identify yourself), so I defer to those more knowledgeable.

But first, Roe did, in fact, leave the question of the personhood of the unborn deliberately unanswered.

I am unaware of any subsequent ruling that settled the matter, which is not surprising, since the issue hasn't been raised since Roe, and I would bet there isn't a majority on the Court that would want to answer the question.

I think no one, including me or anyone here, can predict what a future court will do in general, particularly on this question. I have no idea what Justice Kennedy would rule in this particular question. Remember, if the Life at Conception Act were passed into law, and it comes to the High Court, it is no longer merely an abortion case; it would have much broader implications, including about separation of powers and the scope of Congress' power under the constitution.

Now, as to the effect of the legislation if passed: it would not, itself, outlaw abortion; nor would a court decision upholding it. Rather, it would be a predicate for states, and I suppose Congress, to do so.

As bizarre as it may sound, just because the law recognizes someone as a person, that does not, by itself, equal a law against all aggressions against the person. A hypothetical example: if, for some strange reason, a state repealed laws protecting people over 80 from being murdered, that would not mean they are no longer persons by virtue of that repeal. A more concrete example: African Americans have been specifically persons under law since the 14th Amendment, yet that fact, important as it is, did not equal actual legislative protection for them. Other laws still had to be passed (and enforced).

So I don't think anyone here is speaking of the High Court "outlawing abortion." I don't know how it would do that. It could strike down Roe, or very improbably, on its own, find a basis for unborn children being persons.

And, if legislation were passed declaring them persons, then the court would be asked to rule on it.

Father Martin Fox

Publius:

I am not certain you were describing the Life at Conception Act as "quixotic," and harmful to incrementalist measures, but if you were, I'd like to respond to that.

No offense, but I don't find the term "quixotic" very meaningful in this context. The late Sen. Everett Dirksen used to say that "politics is the art of the possible." True enough, as far as it goes; what is possible in politics is itself remarkably malleable. A major part of changing what is possible comes by attempting things seemingly impossible.

Legislation is worth pursuing for a variety of reasons, well before you actually pass it! I.e., you can do a lot of good with a proposal, and the battle over it, before it ever becomes law. Simply by introducing it, and having a public discussion over it, is valuable; far more important is to have actual floor votes -- at this point, it really doesn't matter if it passes.

I mean, sure you want to pass it, but the first step is to get votes, so you know who the good guys and bad guys are. Too often, people think it's harmful if a proposed bill gets voted down. Not at all! You get the vote, then you hold the folks accountable -- i.e., they feel the heat and switch, or they are replaced at the next election. Then you are stronger, not weaker, and you go into the ring for round two. So it goes until you have enough votes to pass it.

It can take a long time, but the point is, it's hardly a harmful or quixotic thing, it's the best path forward for legislative change.

Now, as to this approach somehow hurting other, "incrementalist" approaches. I don't see how this follows. In labor law, someone proposes something deemed "too extreme" -- maybe it gets a vote, or it doesn't -- but other things still are proposed, voted on, and passed; same with taxes, same with trade and issues like "gay rights" and marriage. In this area, you can look at the states: they have been considering, voting on, and passing, a variety of laws on the abortion issue, both "quixotic" and "extreme" proposals as well as incrementalist ones, side-by-side, in the same legislatures.

On the contrary, if what you want is incremental action, a push for something like the Life at Conception Act helps, it doesn't hurt. A congressman gets thousands of letters and postcards urging him to support two abortion bills: the Partial Birth Abortion Act and the Life at Conception Act. In what universe does that Congressman not figure the folks in favor of the latter would not also want him to vote for a -- and be mad if he didn't? And if he calculates the LACA is too much for him, but he has to give prolifers something, what do you suppose he does? Bingo: he votes for the incremental approach.

But how about we turn your incremental-v.-total comparison around. Have you considered how the incremental approach makes a fuller solution not more, but less likely?

If I get on the phone, and call everyone in town who is, in some sense, "prolife," and I get everyone to work with me to get rid of bad guys in the legislature who are pro-abortion; and meanwhile, the legislature is enacting new restrictions on abortion, here's what is going to happen:

Partial Birth Abortion Ban passes: Joe and Sally stop working, because that's what they mainly cared about.

Parental Notification and Intervention Act passes: Bill and Chris drop out.

And so forth. The incremental approach has the downside of slicing off parts of your coalition, giving you less heft in pressuring the politicians. The likely outcome of pursuing the incremental approach -- the "salami slice" approach -- is that you'll never get beyond the first few measures.

See, the mistake many make is thinking legislation passes largely as a function of popularity and how strong the sentiment is for the idea -- so you have to educate folks to agree with your goal, and eventually, you win.

Nope. Legislation is a function of mobilization.

If as many as 2/3rds of the people who can vote, actually register, and in a good year, 2/3rds vote, then 2/3 x 2/3 = 4/9 or 44%; which means the winner wins with 22% plus one vote. The winner will build on a base of party-id folks who tend to vote their party all the time: say that gets the candidate to 30% on his way to 50% plus one vote needed to win; how does he make up the other 20% of his winning vote total? Issues are the best: abortion, guns, taxes, etc. But it's 20% of those actually voting, that 44% of the total universe of those who can vote: less than 9%. Who wins, and who helps govern, is a function of which issues mobilize which groups of people to provide that margin.

And in many elections even for Senate and Congress, far less than 2/3rds vote, shrinking the winning margin, as a percentage of the whole population, making effective mobilization even more significant.

So, for example: polls usually show more folks in favor of gun control. And yet, over the years, the gun rights side has done far better on election day, to the point that you saw John Kerry toting a gun around during the 2004 election! Because the gunnies are better mobilized, and they form a potent "thumb on the scale" to push friendlies in, and opponents, out.

Of course, there's more to say, but that's enough for now. My point was simply to dispute too cramped a view of what is possible, as exemplified by the term, "quixotic."

For that matter, that's what people said in 1980 when Reagan talked about surpassing the Soviets, and when in the mid-80s, he talked about the collapse of communism, and even in 1987, when he said, "Mr. Gorbachev, tear down this wall!" Of course, the wall was down in 2 years, and the Soviets were gone shortly thereafter.

StubbleSpark

I think the accusation that some pro-life measures are forms of anarchy and some are forms of (or forms that lead to) dictatorship are meaningful criticisms of the methods of pro-lifers like myself.

But they fail to address the dictatorial and anarchic already ensconced in American law by RvW.

It is anarchical because its precedent is one where just about any "right" can be imagined and then legislated through a creative reading of the constitution. Other examples of this runaway process of drafting rights would be the "rights" of marriage (not a right, but a priveledge and a social imperative) and the recently suggested "right" to own a house. If politics is merely "the art of the possible" then we can only expect a future in which we are deluged by a myriad of contradictory rights.

It is dictatorial because it relegates an entire class of humanity as sub-human and thereby subjects the weak and innocent to the caprices of the legally declared "fully human". RvW instituted a legal tyranny.

What happened was a real failure of the American system to prevent itself from violating its own constitution as well as protect the citizens of the country from injustice. The court both overreached its authority and failed to live up to her moral and legal obligation to serve the best interest of the American people.

StubbleSpark

What we in the pro-life movement are looking for (or should be looking for) is more than just a legal solution to a legal problem, but a *corrective* that will:

A) Make sure this type of violation does not happen again and/or

B) Chastises the parties responsible for the violation.

Largely we focus on the more innocuous measures of legal action because the pro-life movement rejects correctives such as a violent grass-roots uprising or a complete political overhaul

It should be noted that neither of these options have been ruled out by the Left. Many disenfranchised leftists call for violent revolution and even fantasize about such atrocities as assassinating the president. The Left is also quicker to threaten a complete overhaul of the political system and constantly laud parliamentary systems with their 31 Flavors of political parties as the true system of "choice".

Pro-lifers generally recognize the best way to reconcile this issue is with methods which keep an eye towards maintaining the legitimacy of the government but at the same time I think it is right for us to remember the ultimate wrong-doer here is not the peaceful, legal grassroots pro-life movement but SCOTUS itself.

Given the function of SCOTUS -- as a final corrective and defense of a law meant to serve Americans -- we are faced with the question: Who corrects the Correctors?

Constitutionally, this very question puts us in Terra Incognito. This is the real undecided issue that needs to be worked out if we are to come to a truly legal pro-life solution that does not violate the constitution, impose an anarchy of fantastical "rights", or institute a legal precedent that can be abused for dictatorial or tyrannical ends.

StubbleSpark

So no wonder there is confusion. The answer to the question "Who corrects the Correctors?" in a democracy is obvious: we do. But the method remains in question.

Which of the branches of our triune government is the best way to right this wrong?

No one, not even people on the right, trust the elected representatives in congress or the senate to go about such a large reform. The very act of initiating such a reform could very possibly drive the Left to take up arms in a revolt against a government whose very legitimacy has been in serious doubt since Gore lost two elections ago. (Thank you, conspiracy-mongers.)

The Left would be very surprised then when, if they attempted an overthrow, that Right would meet them head-on in defense of a government with which they have a much longer list of far more serious grievances.

If it came to this, however, there would always be reason for a segment of the native citizenry to hold the government in contempt and disregard her legitimacy. Which opens a whole other can of worms that could take centuries to resolve.

Electing a president who would appoint Justices amenable to the idea of a more clearly defined ken for SCOTUS is probably the best method because it would involve SCOTUS taking responsibility for its own actions.

But this method is the slowest and most indirect approach there is. It is made even more difficult by the fact that congress deliberately tries to prevent the appointing of justices who have agendas even though in this case the agenda is a vitally important one.

Add to all this the impending threat of Islam which, under sharia law does not even countenance the questioning of government legitimacy, may overrun a nation weakened by infighting and lead to the ultimate demise of the American system to a "stronger" and more permanent form of government.

A Simple Sinner

Forgive me for being blunt here...

I am past the point of having hope in our system. There are no political solutions to the cancer of our culture. We can't vote on it, just pray on it.

I am going to joylessly vote for the person that gives SOME lip service to lessoning abortion in some fashion... Even if it is just proposing to see to it tax money does not go for it.

Just a matter of chosing what is "less bad".

The best we can do? In my opinion, it is to be fully Catholic. Go to Mass daily if you can, say your rosary whenever you can - a decade on the way to the grocery store, while you are on the subway, while you are doing laudry. Just do it. Redeem and sanctify every second you can. Go to Eucharistic adoration, VERY frequent confession, give our Catholic tracts, invite neighbors and family to Mass.

Also, honestly, trying to outlaw abortion will be as successful as outlawing pot. Until souls are converted to NOT want it, this will avail little. Of course I still support it because even stopping one abortion is worth every treasure in this world. But how to do that? Of course Vote pro-life... but we can only do that once a year (governors, state senators and such included), but we have to live and pray pro-life Daily, hourly, by the minute by the second.

Election 2008 will accomplish FAR LESS than prayer today.

Father Martin Fox

Stubble:

The problem with looking to the court is that that is not where the real power is -- it's in the legislature.

Before we plan on the Supreme Court overturning Roe, we need to know, for example, how many votes we have. Does anyone know but the nine justices and God? Don't assume, for example, that Alito and Roberts are sound -- they have yet to commit themselves on this key question; their contributions to the Partial Birth Abortion ban ruling are only suggestive, nothing more.

So do we need one, two, or three? We know only where Scalia and Thomas stand.

Now, best case scenario, we need one; that requires: electing a president, and a lot figure, that's easy, just one election. But not so: that means winning elections in X states equal to success in the primaries, then winning elections in X states equal to a majority in the Electoral College), and electing a Senate that will confirm that nominee: meaning winning election in X states with Senators up this year -- and most likely, you will need to win some in the next round, in two years, since only 1/3 of the Senate is up each election.

And of course, all that assumes the president will pick the right nominee. We have a very clear track record in recent years: since the 1968 election -- I start there because Nixon was elected, in part, on the promise of "strict constructionist" judges -- we've two Democratic presidents, and four Republican presidents elected on similar promises (Ford was appointed). Three of the GOP Presidents ran as "pro life" candidates, who were going to help end Roe v. Wade. Nixon's appointees were pretty awful: Blackmun, Powell and Rehnquist. Rehnquist was solid, but Blackmun authored Roe, and Powell voted for it.

Reagan was supposed to be better (and I'm not running him down), but his three were the same on Roe! O'Connor (bad), Scalia (good), Kennedy (bad). Remember, Reagan had a GOP Senate for the first two.

Bush the first -- with strong Democratic majority in the Senate, actually has the best record: 1 and 1: Thomas and Souter.

Bush the second -- we are all hopeful, but we don't know yet.

My point is not to say it's hopeless, it's not; but too many pin great hopes on a GOP nominee picking someone good. Even if they promise to, once he's in office, how really do you hold him accountable? Even if we found out this coming term that Roberts and Alito are bad (if they prove to be), it's too late for Bush to answer for it. My point is, all a Bush -- or any of the current GOP candidates has to do is appoint someone not obviously untrustworthy, which is exactly what happened with Bush.

Also, when what you need is several votes, think of it this way. What are the odds that the next nominee, appointed by Bush (assuming a vacancy still in his term), or a successor of similar commitment, will be what we want? If you count on this working, you have to assign some odds. One hundred percent equals absolute certitude; 0% means absolute impossibility. Let's peg it 70%. That doesn't sound bad.

All right, how about the next two being likely to be what we want? Do the math: .70 x .70 = 49%. If we need a third? 34%.

Now, if you say 70% is too pessimistic, fine, up it to 80% and do the same formula: you get a 64% chance the next two are solid, and just 51% chance the next three are solid.

Someone says, ah, but we don't need three! Really? I only know of two judges on the Supreme Court who are committed to overturning Roe. You are counting your chickens (Alito and Roberts) before they are hatched.

Here's the point of all this: whether you look to the courts, or the legislature, the only way any good things happen, presuming prayer and trust in God, is by prolifers being engaged in the political process. In short, prolifers have to have political "juice" -- they have to be able to pressure the decision-makers before they decide, and hold them accountable, after, if they make the wrong decisions. That's why they promise to do the right thing in the first place, right?

Okay: so back to the question, courts or congress. Which one is easier to hold accountable after the fact? When's the last time a Supreme Court justice has been impeached and removed from the Court. I believe the answer is never. A lot more Senators get defeated or replaced every cycle.

So when prolifers say, "we can't win in Congress," then I fail to see how you can expect to win in the courts. If we lack the juice for the one, how do we miraculously gain it, for the other? If we're a paper tiger, why in the world should any GOP president fear going back on his promises now to pick our kind of justice?

Which means, the "go the courts" option really means, throw the ball somewhere toward the end zone, and hope for the best. That's not a strategy, that's what you do 3 seconds to the buzzer.

The facts do not bear out this deep pessimism: prolifers have tremendous ability to hold the politicians accountable, we've made great progress; the reason we don't move faster is that our founding fathers created a system specifically designed to frustrate rapid change. Now it's frustrating us; the system works.

But when you realize we do have "the juice," then why go for the desperation play? Apply our leverage, as I say, at the point of greatest vulnerability -- not presidents who face re-election one time and justices who never face re-election, but on Congressmen up every two years, and Senators, up every six.

The comments to this entry are closed.

January 2012

Sun Mon Tue Wed Thu Fri Sat
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31