Asymmetrical Information

I sometimes wonder why the pro-Choice crowd (those little Bastions of Liberty and the American Legion of Tomorrow [to quote Tom Lehrer]) doesn't do the Consitutionally supported thing and lobby their Congresscritters to amend the Constitution so that abortion (or "privacy") is explicitly protected as a right. Worked for sufferage after all.

Perhaps they suspect that it wouldn't pass?

Jason,

One reason why they aren't lobbying their congressman is that Congress can't amend the Constitution.

Congress can take part in amending the Constitution, and has often.

Not that it's needed -- if Roe were gone, Congress could get the same effect with a law. Except unlike a court ruling, a law could bear fine distinctions and be updated with the march of technology.

Uhhh, Horace, think again:

"Article V:
The Congress, whenver two-thirds of both houses shall deem in necessary, shall propose amendments to this Constitution..."

Now, they do not alone hold the power, as anything they propose must be ratified by 3/4ths of the state legislatures, but they are a key step in the process.

It's the President that has no power in this regard, which is why I always found it so funny how people would press Presidents to come out for or against a flag burning amendment.

But yeah, Jason, I've often wondered the same thing myself. It is often stated that the vast silent majority of the nation is pro-choice. Tap that power and change this from a paralyzing issue for the Supreme Court and make it a legislative issue via the amendment process.

Why would anyone shoulder the burden of passing an amendment to win a right they already have?

Michigander, the practical issue is that the courts out to be judging fine distinctions of law, not wrangling about what the law should be. If the constitution's and the law's support for a position is shaky, then clearing that up would take pressure off the courts and let them continue with their real business.

Philosophically, many people think that the law should be decided democratically and by the legislative branch.

Spiritually, what kind of country will we be if congressmen continue to pass unconstitutional laws? What kind of country are we if the guys we elect are constantly butting up against constitutional restrictions? The constitution should protect against the worst excesses, but it can never do so perfectly. To get the best results, we need a legislature that will strive to protect our rights.

There are loads of reasons for this and other issues to lead us to at least consider amending the constitution.

Umm, Danny, I thought about it the first time. I stand by my post. Congress cannot amend the Constitution. It's that simple.

Jason,
First, there are people lobbying for a constitutional amendment to protect Roe v. Wade. As you note, it probably wouldnt' pass, but so what? That isn't necessarily a good barometer of the support for Roe V. Wade. It isn't easy to amend the Constitution. Consider the flag burning issue. A ban on flag burning enjoys widespread support among voters, has passed many state legistlatures and the amendment language has passed Congress several times with solid margins, but with not enough votes for an amendment. This amendment was first proposed by the first President Bush in 89 and its still not the law of the land. I would submit that an more contentious amendment, like abortion, would take even longer to pass, it it passed at all. In the meantime, are pro Roe advocates supposed to simply sit around and allow the courts to take away the right to abortion while the press for an amendment?

Dan,
While it is true the president has no official role in the Article V amendment process, that doesn't mean that its wholly irrelevant when people ask for his position. He can still use the power of the presidency to lobby members of Congress to at least help push the amendment through there. Its nothing official, but it still matters politically. The prosed flag burning amendment, for example, probably would not have been as big an issue had Bush 41 not pushed so hard for it.

A little off topic: but screw the flag-burning amendment.

"This cloth has stripes and stars on it, YOU SHALL NOT BURN IT!" Who views the country as so weak that it can't stand up to a few reams of burlap being lit on fire?

> Congress cannot amend the Constitution. It's that simple.

Except that it's not that simple, because the only "argument" that Congress cannot amend the constitution tells us that no one can amend the constitution, yet the constitution does get amended.

Congress plays an important role in amending the constitution. If you're unwilling to use the Congressional path, then either you're unwilling to amend the constitution or you're going to use another route to a constitutional amendment. The "other route" is usually chosen by people who have tried and failed via the congressional route, something that the privacy people haven't done.

Andy: Is there even "another route" to amendment, short of calling a new Constitutional Congress (which is of, er, dubious legality, as there's no mention of it in the Constitution, though on traditional and theoretical grounds I suppose one could be defended), or an out-and-out revolution and imposition of a new Constitution (which could be identical except for the Amendment, which I imagine many people would consider invalid precisely because of the route taken to install it)?

As far as I last read the Constitution, there is exactly one method for amending the Constitution, within said Constitution.

(You're totally right that Horace is utterly missing the point, though. At this point I almost wonder if it's intentional.)

(warning -- snark alert!)

Well, Andy could be referring to using the courts to de facto amend the constitution via a (*cough*) nuanced enough interpretation of some particular clause.

Or he could be referring to the within-the-Constitution process of the several States calling for a Constitutional Convention.

As far as I last read the Constitution, there is exactly one method for amending the Constitution, within said Constitution.

Read the whole thing. Constitutional conventions are explicitely provided for. It is possible to amend without Congress, indeed against it. A supermajority of states may call a convention. There are even two methods of ratifying amendments.

Jason -- maybe the question should be reversed.

Why, despite repeated attempts can those opposed to abortions not seem to mange to get a constitutional admendment banning abortions.

Those favoring abortions do not need to do anything. They are already satisfied with the constitution in this respect.

Why would anyone shoulder the burden of passing an amendment to win a right they already have?

Because you're more likely to keep a right you're actually entitled to than you are to keep a right invented by judges.

I'm pro-choice, but Roe was a ridiculous ruling nevertheless. We'd be better off if the Constitution actually said what the Court pretended it said.

That's why this piece was so danged funny. It correctly points out that the SCOTUS has become all about abortion (i.e SCOA). All SCOA candidates must be For Abortion.

Judicial remedies for legislative problems merely turn an acute problem into a chronic one. The question isn't really answered at all, and the issue festers and erupts again and again. It substitutes a prolonged trench war for a more decisive face to face battle in each state.

This way, the fighting never ends. Whoopee.

The reason neither a pro- nor anti-abortion ammendment will never get added to the Constitution is relatively simple. The Constitution was only intended to be amendable when there was a broad public consensus in favor of a particular change. There probably is a fairly broad consensus on the issue, but it neither side of the abortion debate really represents that consensus: permit abortion for a limited portion of the pregnancy with reasonable restrictions on the process. Of course, if you suggest that, you'll get the anti-abortion folks calling you a baby killer and the pro-abortion folks calling you a fundamentalist wacko out legislate "The Handmaiden's Tale".

Roe v. Wade should be of the utmost concern to anybody who cares about the future of the country, even if you are totally agnostic on the morality / immorality of abortion itself.

As long as Roe v. Wade stands, America is no longer a constitutional republic with a limited central government. Instead we have become a free-wheeling, "anything goes" democracy where the central government can do anything it wants, the States have totally lost their role as the primary governing bodies, the whims of five supreme court justices are the Law of the Land, and the written Constitution isn't worth the paper it's printed on.

Roe v. Wade is such an important Litmus test in the eyes of Big-Government liberals because any supreme court justice who voted to overturn it would most likely be a highly principled strict constructionist who just might also vote to overturn other unconstitutional usurpations of power by the central government -- maybe even Wickard v. Filburn :-) The whole Welfare State could be in mortal danger; it's a Liberal's worst nightmare.

There is a thought-provoking essay on Roe v. Wade entitled "The Right Right for our Time" available at:http://shiningwire.bebto.com/right%20right%20for%20our%20time.htm .

How does a Constituional Convention get called? That'd be another way.

Here is another way to view it, stripping all the emotion from the discussion.

Abortion is an elective medical procedure, not generally needed to maintain one's life or health. It requires the participation of one of the most highly regulated industries in the country, the medical profession. How on Earth can someone justify saying this one non-self-administered medical procedure is a constituional right? As such, Roe v. Wade is one of the most atrocious decisions to ever come out of the Supreme Court.

Nothing in the Constitution addresses this, either for or against; therefore, it falls under the 10th Amendment, making it a State issue.

Why would anyone shoulder the burden of passing an amendment to win a right they already have?

Because you're more likely to keep a right you're actually entitled to than you are to keep a right invented by judges.

I don't see the NRA attempting to pass an unambigious version of the 2nd.

How anyne could, with straight face, suggest that SCOTUS contortions over an inferred right to privacy (which is then construed to cover abortion) are just as unequivocal as the 2nd Amendment is beyond me.

Playing word games to construct rights which are not clearly there is ultimately divise, whereas a campaign to hammer out a large enough consensus on some amendment more forceully and explicitly affirming individual rights (of which privacy is one manifestation) would be useful, and a good thing if something were passed.
It's not just about a blanket right to an abortion -- which after all Roe v Wade doesn;t grant anyway -- to take the inferred right to privacy and THEN also judicially declare that the first trimester is the cutoff ... where the hell is *that* in the constitution? Why not 8 months and 29 days? They are already totally adrift.
Regardless of exactly where it fell, an amendment clarifying privacy would be a good thing.

FWIW I don't think any amendment specifically about abortion would ever be a good thing -- at the same time the constitution should not be a laundry list of policy preferences.

While we're at it, any sort of national sales tax replacing the income tax would, IMO, need an amendment repealing the one that allowed the federal income tax (one of the few places -- only?-- where an original protection for the individual -no capitation tax --was tossed aside. Additionally it should specifically prohibit any ne back door taxes like a VAT.

Sometimes poetry can express such things better than prose, for it speaks to the emotions that tend to underlie peoples' various positions on these issues. Here are a couple of poems I wrote on the subject.

Pastoral Counseling

Her weeping is a tiny, tinny sound
Crawling from the fallen receiver.
Precautions have failed us. We have
A Situation to address. She
Came to me for consolation
A troubled teen unable to
Handle her desires: nor I mine.
Her flesh was firm and ripe
And mine weak.
I have betrayed faith, flock, family
And the trust they and this girlchild
Placed in me. Unable to
Bear this revelation spreading further
I choose my sole recourse, to betray anew
And to embrace iniquity and
Lie with abomination.

I lift the receiver and speak to her
In practiced tones, both balming and commanding.
Go to the clinic, I tell her; I'll pay for it.
And shiver as ghost nails
Rake my back like a lover's clutches:
A dead hare crossing the grave of my convictions.

The Fundamentals

"Abortion is murder!", the witch-burners bray
As they kneel on their hard wooden floors to pray
That all the damned heathens will see the light
And be saved from Hell's bondage by bonfire bright
And Cain's crosses glowing in southern night.

Our mothers and sisters and daughters and wives
Are reduced to receptacles, their whole lives
Possessed by one purpose: to nurture cells
More worthy of life, for they might be male
Like Jesus - thus wombs are warped into jails.

Poor Eve is the pattern primordial, damned
By gender, as race consigned sons of Ham
To servitude, their God-burned cross their coal
Complexions, and if one should flee their fold
Love says, "Scourge the body to save the soul."

If knowledge of ethics is primal sin
Then 'teaching all nations' commits again
That error, but teach they must, for their bane
Is difference; they're driven to all souls train
For Heaven, where all seraphs sing the same.

I don't see the NRA attempting to pass an unambigious version of the 2nd

Because there's nothing unambiguous about the right that's there. Ask any English teacher if the first half of the amendment is a conditional clause on the second; they'll tell you "no". Gun grabbers just mentally add "who are serving in a government-controlled militia" in between "the people" and "to keep and bear arms".

Jane,

How do Steven Levitt's recent arguments inform your positions, if at all?

Publius Rex

Frankly, both sides are strictly snore city to me on this issue. The real issue is when does human life begin, and that needs to be openly discussed in order to pursue REAL IMPORTANT issues LIKE SCIENCE, not the stupid handful of abortions and partial birth insanities that arise each year from mistakes.
America needs to understand blastulae, parthenotes, research chimeras, cloning and ovum recombination. The abortion issue is a red herring in the war on science. Get over it.

I don't see the NRA attempting to pass an unambigious version of the 2nd

Because there's nothing unambiguous about the right that's there.

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. [Emphasis added]

I'm not arguing the merits of the "anti"s, in fact I disagree with them. But I don't want to get sidetracked into that discussion, the point remains. If you believe you have the right and especially if the Supreme Court agrees with you, you don't try and pass a constitutional amendment to affirm that right.

Re: "The abortion issue is a red herring in the war on science. Get over it."

Wow, some red herring. A SCOTUS red herring decision that has us still arguing over 30 years after the fact. Piffle.

The 'positive rights' folks are in fact afraid to admit that there is no such right in the Constitution, and the Roe decision was simply the enactment of law by judges.

There is a common belief in the US and much of the West that humans only have rights that are specifically enumerated by the all-powerful State. This is contrary to the position of the Framers, who stated that those rights and duties not enumerated in the Constitution were retained by the States and the people.

It really is a shame we've taken this road of positivism. It has been so destructive.

If the SCOTUS weree ever to overrule Roe v. Wade, all that would happen immediately would be to resurrect laws regarding or restricting abortion procedures in the 50 states and the District of Columbia. In the 32 years since Roe was decided, neither the House nor the Senate has held a month or so of major, televised hearings (similar to the Senate Watergate hearings in the summer of 1973), and they aren't likely to do so now. True, they have nibbled around the edges, but there have been no major hearings addressed to the core of the Roe decision. Neither side has the numbers to pass an amendment. It seems to me that if Roe was reversed, and the political process was allowed to play itself out, that most states would find some way to allow first trimester (no questions asked) abortions, and that almost all of the "blue" states would be very liberal in their regulation or non-regulation of the procedure. Even in a large number of "red" states, the battle between rural versus urban centers would play itself out with the state laws allowing local communiuties to decide. Georgia, a "red" state` might thus allow each county to decide` and Atlanta would continue to be a major center for abortions. The righteousness of each state senator and representative could thus be saved because they had kept it out of their district. Wink, wink. Because of some slightly increased difficulties, in having to travel further or by making it slightly more expensive, the number of abortions might go down 2 to 3%. The real problem with regulating abortion is not that SCOTUS won't overturn Roe; it's that in addition to an ideal law banning abortion as a general rule, and having exceptions for (1) savikng the life of the mother, (2) reported rapes, (3) reported incest, and (4) diagnosed fetal abnormalities, many voters want (although unstated) a fifth exception for their own hypocricy (that is, abortion will be illegal for healthy women carrying healthy pregnancies except when it comes to a decision involving me, my wife, my girlfriend, my daughter, my sister, etc.). And nobody can figure out how to draft that. Megan, a series of excellant posts.

Sir Toby Belch in Twelfth Night persuaded Viola and Andrew Aguecheek that each wanted to duel with the other, when in fact neither did. That's what the Roe v. Wade fight has come down to. It's a fund raising stalking horse for both sides. (Not that I'm a moral relativist - abortion is the taking of a growing human life).

But all this over a court case? When the pro-choicers know abortion would remain broadly legal?

It sounds more like an anti-democracy movement at heart.

I'll second the notion that Megan has written an excellent series on the abortion issue.

As others have pointed out, the Roe decision circumvented the political process, but only in that point in time. There is a political solution to this via the amendment process, available to both sides since the Roe case. Because the pro-life side is in opposition to the legal status of abortion, it is incumbent on them to pursue this avenue.

They won't seek an amendment because the severe restrictions they desire wouldn't make it out of Congress, let alone the states. In other words, the pro-life side won't compromise. This explains their focus on the SC nominations and Roe.

While I'm sympathetic to the pro-life arguments against arbortion, I'm fed up with their political hypocrisy. They claim to be against activist judges, yet they openly campaign for an anti-Roe majority. They claim to have "the People" on their side, yet they won't propose any amendments on the issue so "the People" can decide the issue.

They claim abortion is murder, yet the sanctions they prosribe should abortions be criminalized would apply to the abortionist, not the pregnant woman if she would testify against the abortionist. That's like punishing a contract killer and granting immunity to the person that contracted the killing. Furthermore, the sanctions proposed by pro-lifers are no where near the sanctions we currently have for murder, so their entire rhetoric here is over-blown and hypocritical in the extreme.

I don't see a resolution to this until (1) a politcal compromise is offered by the pro-life side so a compromise amendment could be passed, or (2) the pro-life side surrenders to the status quo. Sadly, neither of these seem likely to me. Talk about a quagmire.

As long as Roe v. Wade stands, America is no longer a constitutional republic with a limited central government.

Nope. Wickard vs. Filburn is the key case in that regard. The fact that Congress can regulate what foodstuffs you grow in a home garden for personal use killed the limited central government ideal.

Re: "I don't see a resolution to this until (1) a politcal compromise is offered by the pro-life side so a compromise amendment could be passed, or (2) the pro-life side surrenders to the status quo. "

So, liberal judges exceeded their constitutional authority and passed a new unheard-of right, but it is the responsibility of those pointing out this error to remedy it by passing a constitutional amendment.

Great. So judges aren't going to be held to the constitution, and can do whatever they damn well please, and demand that if we don't like their unelected legislating, we must remake the Constitution every time a judge decides to play New Framer As I See Fit.

In other words, you have made the Constitution not a living document, but a dead issue, meaningless, superfluous, and pitiable.

I addressed this issue here. Basically, I think we would all be better off if Democrats would agree to let the SCOTUS flip the switch to off position. In the ensuing struggle to get the legislation right, the Evangelical Right wing of the Republican Party would be decimated, the small government Republicans could come back from exile, the Democrats would rediscover grass-roots and democracy, and we could get back to our regularly scheduled Non-theocratic Republic. Such a little thing for such a big payoff.

But the courts (sometimes) disagree with you.

The courts frequenty ignore the Constitution and make shit up. See also "Roe vs. Wade". :)

This is contrary to the position of the Framers, who stated that those rights and duties not enumerated in the Constitution were retained by the States and the people

Yes, but they didn't believe that people had a right to do whatever they pleased with their own bodies. People STILL don't believe that, in fact, and neither do the judges on the Court. Oh, sure, many people claim they do, but we still mysteriously seem to have all these laws against drugs and prostitution.

One of the many flaws of Roe (and the cases that came before it) is that it is based on a right that the Court quite obviously doesn't think really exists.

How's this for a Constitutional abortion amendment:

ARTICLE I
Nothing in this Constitution shall be understood as guaranteeing a right to cause or procure an abortion.

ARTICLE II
Section 1. A State may regulate, restrict, or prohibit the practice of abortion, but such regulation, restriction, or prohibition shall be enacted according to the following procedure:
Section 2. Any State initiative, whether legislative, executive, or public, by which it is proposed to regulate, restrict, or prohibit the practice of abortion shall be referred to a Special District for Abortion Policy, which each State in which such an initiative may be proposed shall establish.
Section 3. Voting for members of such Special Abortion District shall be as follows: Each female citizen shall have two votes. Each male citizen shall have one vote. Nothing in this Constitution, including but not limited to the Equal Protection Clause of the Fourteenth Amendment hereto, shall be interpreted as conflicting with the provisions of this Section.

So what do you guys think?

I agree that Roe v. Wade is a corrupting, polarizing, dishonest institution. It detracts from the freedom of self-government, diminishes the rule of law, and prevents the country from setting its abortion policy at a point which reflects the consensus of the American people.

The only thing that could be said in Roe's favor is that it represents an attempt (though a bitterly flawed one) to prevent a minority (women of childbearing age) to be subjected by the majority to restrictions to which it's presumed they would never themselves consent.

Since the Constitution's restraints on pure democracy were intended in large part to protect the rights of electoral minorities against excessive restraints -- even democratically-enacted ones -- Roe was motivated by a fundamentally decent impulse. But it's the wrong tool, and it's imposed too many costs, as noted above. If we should decide that the existing framework of the Constitution is insufficient to protect the rights of the electoral minority with respect to the abortion question, I believe the Constitutional amendment suggested above would be a far better solution. It would be more honest and far more respectful of the freedom of self-government.

Dan writes: The courts frequenty ignore the Constitution and make shit up. See also "Roe vs. Wade". :)

But it would be harder for them to "make shit up" if there was stuff about a "well-regulated militia.". It could be clearer with a new amendment. Something like this:

1. The right of the people to keep and bear Arms shall not be infringed.

2. This right belongs to the individual people.

3. We're not talking about the National Guard. They're really cool and all that, but that not who we mean.

4. Are you paying attention? The right of the people to keep and bear Arms shall not be infringed by the states.

5. The right of the people to keep and bear Arms shall not be infringed by the federal government.

6. The cities and towns? Don't even think about it.

The "war on science" (presumed to be waged by the evil religious right) is really a misnomer. We have never had LESS religion in this country than we do now, and we have never had POORER science scores or less homegrown scientists than we do now. Certainly there is correlation, but doubtful any causation.

Most people would pit these two groups against each other, but both share a common thread. Both institutions are under full-scale attack by lawyers. The army of lawyers attempting to legislate religion out of our society stand hand in hand with those attacking science-based industries like biotech/pharma and medicine.

Dan writes: The courts frequenty ignore the Constitution and make shit up. See also "Roe vs. Wade". :)

See also "Campaign Finance Reform", in the face of "Congress shall make no law ...". :)

I contend that there is no clearer language anywhere in the Constitution than those words from the First Amendment.

All of this emanations and penumbras "stuff" is just a fresh, warm, steaming, stinking cow paddy. Watch where you walk!

Fresh?--no, steaming? hardly. Penumbras and emanations(Griswold) now forty years old(1965). Hell William O. Douglas wasn't even senile when it was written.

So what do you guys think?

That there's no way of justifying giving women twice as many votes as men.

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