God Save the United States and this Honorable Court"The Honorable the Chief Justice and the Associate Justices of the Supreme Court of the United States-Oyez, Oyez, Oyez..."
Recently, Nashville blogger and Davidson County Young Democrats' Chairman Sean Braisted and myself have engaged in a friendly but spirited back-and-forth on the nature of Roe v. Wade in which Braisted basically acknowledged that Roe's legal foundation is shaky, and admits that he favors an amendment to the federal Constitution which would allow for unrestricted aborticide in the first trimester but then allow for States to restrict the practice thereafter.
In part, Braisted writes:
I'll never fully understand the position that abortion should be left to the states. If a fetus is considered a human being with full rights in Alabama, how is it not in New York? Of course, I readily admit I am no "state's rights" advocate, and I do believe we as a country should have more uniformity in our laws.
The Constitution makes no definition of murder, and in fact the only crime that the Constitution specifically defines is treason against the United States, which it defines as consisting "only in levying war against them, or in adhering to their enemies, giving them aid and comfort." (Article III, Section 3) In making the statement that he does above, Sean clearly aligns himself as a proponent of the Organic Theory of Government, while I ascribe to the theory held by a majority of the founders, the Compact Theory.
Braisted says that he favors a Constitutional amendment defining the issue because he sees weakness in Roe:
Obviously you don't think Roe v. Wade was correctly decided, and personally I think it's foundations are rather shaky, regardless, it is there. So if you view abortion as a Constitutional "right" then the states can not infringe upon said right because of the 14th amendment.
If Roe v. Wade were to be overturned, then I do think the decision would get kicked back to the states, as it should be. I would not support a Federal law restricting the states from passing abortion laws. However, I would support a Federal Constitutional amendment to protect a woman's right to chose in the first trimester, as I stated previously. I just think we shouldn't wait to see if Roe v. Wade is overturned, and we should pass that amendment now.
The idea that somehow the 14th Amendment, an amendment designed to guarantee equal protection under the law, guarantees the right to abortion as a matter of privacy is patently rediculous. The 14th Amendment was designed to insure that the law applies to citizens equally and defines the nature of citizenship in the wake of the abolition of slavery. It does not re-write the federal Constitution.
Braisted realizes this, it would seem, and so did Rehnquist in his dissent in Roe. The 14th Amendment has been defined wrongly by reading things into it that were not there before-the most notable example of this is Plessy v. Ferguson. The problem arises when Braisted insists on a Constitutional Amendment defining the issue. I pointed out that Blackmun's initial reading of the 14th is not constitutionally sound:
There is no constitutional right to abortion-that is precisely what I meant when I said that certain judges simply create law that doesn't exist in the Constitution in order to suit the political climate that they think ought to exist.The fundamental legal principle of Roe is that somehow a right to abortion is to be found in the 14th Amendment-this is utterly false. There is a reason why you think the legal foundation of Roe is shaky-because it has no legal foundation.
Sean then returns to his call for a Constitutional amendment:
You can disagree with Roe v Wade all you like, but the decision stands as legal precedent, and because of it, there currently exists a right to privacy when it comes to abortion.I accept this reality, and though I may not agree with it, I choose to work within it; you apparently don't... so long as Roe v Wade stands, states are restricted in what laws they can pass. That is why I support a constitutional amendment defining the issue.
I then gave Sean a bit of the 3rd Degree because the notion that merely because the Court decides something makes it constitutionally or legally sound would mean that we would still be living under a case like Plessy:
You are an intelligent young man, Sean, and so I am quite surprised that you do not see the extreme flaw in this argument. By this standard, Plessy v. Ferguson should merely have been accepted and worked within because it was accepted legal precedent.Merely because something is established as precedent does not make it either settled law or morally acceptable.
Sean then argued that he would not have waited for the Court to overturn Plessy (which it finally did), he would have pushed for a Constitutional amendment to resolve the question. The primary problem with Braisted's amendment argument is reality itself.
Neither myself nor any reasonable pro-life person would accept any amendment to the federal Constitution which defined and guaranteed any "right" to abortion. The very idea is anathema to the pro-life movement. Likewise, it is fair to say that few if any States in the South (including Tennessee, in spite of the State Supreme Court's erroneous finding in Planned Parenthood v. Sundquist, an attempt to pass such an amendment would not only call out pro-life Republicans, but many Democrats in the General Assembly who purport to be pro-life in a "rubber-meets-the-road" proposition) would accept such an Amendment, and it would likely fail in several Western States also. Similarly, a Right-to-Life Amendment also stands no chance at passage, as more liberal States in the Northeast and along the West Coast, and likely the States of Michigan and Minnesota, would stand to reject it.
Since neither proposed amendment stands to pass in 3/4ths of the States (let alone the required 2/3rds Congressional majority) we are left with the option provided to the States by the Constitution: Define the matter for themselves, which is what will happen when Roe is overturned. I have to assume that Braisted is very aware of this reality, and that he knows his dream of an amendment is just as much a flight of fancy as the notion of the pro-life movement that a Right-to-Life amendment could pass in the required number of States.
I used to believe that I would not live to see Roe's eventual demise, but I am now convinced that it will be overturned before my 50th birthday. Even the Left is beginning to see the error in the legal opinion of the case, even if they disagree with the moral arguments. With the overturning of Roe likely to happen in our lifetime, perhaps even in the next decade, the right will return to the States to define that which the Constitution does not, and the fight over aborticide will move to the most apropriate level for it to be waged.