Scalia: Abortion not in the Constitution

January 4, 2011 (LifeSiteNews.com) – In a recent interview with California Lawyer, Supreme Court Justice Antonin Scalia stated that abortion is not included in the U.S. Constitution.

Scalia, who is opposed to the notion of an “evolving” or “living” Constitution, told interviewer Calvin Massey that by giving some of the “necessarily broad” provisions of the Constitution an “evolving meaning,” these provisions fail to do their job, which is to put in place limitations on what society can or cannot do.

Even if “the current society has come to different views [than the original framers],” he said, “you do not need the Constitution to reflect the wishes of the current society.”

Instead, he said, when something isn’t found in the Constitution, it should be taken up by legislators. One of the examples that he used to illustrate this point was abortion.

“You want a right to abortion? There’s nothing in the Constitution about that,” he said. “But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law.

“That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

While Scalia said that sometimes Constitutional interpretation can be difficult, especially when the intent of the original framers isn’t clear, he said that some issues are abundantly clear, such as whether or not there is a constitutional right to abortion.

“I do not pretend that originalism is perfect,” he said. “There are some questions you have no easy answer to, and you have to take your best shot.

“We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on.”

The 74-year-old jurist, who was appointed to the high court by President Ronald Reagan in 1986, made similar remarks in November, when he told those present at a University of Richmond luncheon that the idea of a living Constitution has allowed “five out of nine hotshot lawyers to run the country.”

At the time Scalia said that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That, he said, has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

The Declaration of Independence is not the highest law of the land. It is not even a statute. It was a statement of our intent to become independent as a country.

The Law of the Land is the Constitution (and the treaties negotiated under it).

Now, it is true that the Declaration holds up the Lockean triad of life, liberty, and property (property included under the jeffersonian phrase “pursuit of happiness.”) This is part of our culture and tradition, derived from British Enlightenment philosophy.

As for the commandment “Though shalt not commit murder,” it probably did not have abortion in mind, judging by subsequent Jewish law, which allows abortion under specific circumstances.

But note that there has been considerable advance in biology since the olden days. We now know that genetically a fetus is a distinct individual from the very time of conception. It is not simply a blob of its mother’s cell, to become a “person” at some later “ensoulment.” If one is to be modern (as liberals pretend), then look at what science shows: a fetus is a new human being.

Abortion is a killing, and of that there can be no doubt whatsoever. Whether it is to be called legally murder, is a matter of whether one thinks that abortion is a justifiable killing, such as a legitimate punishment, or a defensive measure against an attacker.

As a fetus has committed no crime, and has not been convicted in any court of law, it cannot in justice be made to suffer capital punishment. Nor is a fetus a dangerous attacker, like a murderous home-invader, or a terrorist of some sort. So it is really completely irrational to allow abortion, which usually is merely a form of convenience killing, except perhaps if the safety of the mother’s life is at issue. That latter exception is allowed by most authorities in Jewish Law, and is favored by the overwhelming proportion of our people. With modern medicine available, it is a rare case where such abortions might be necessary, and should always be a occasion of sadness and regret — and we should never dehumanize the process by calling it merely a “procedure,” or by some other euphemism.

I was having a discussion with a neighbor before the last election. She asked me how I could support the Republicans when they opposed the “right to chose.” I told her that I supposed that it was because we oppose the killing of unborn children. She skoffed, and said that it might have bothered her as a nurse to be involved in abortions, but now that she has helped with many, she sees them as done cleanly and carefully, and she is quite used to it.

I must say that I was shocked, rather than reassured by her first-hand report. Here was a neighbor, a nice Jewish woman, who instantly made me recall the guards at prison camps during the Holocaust: “At first it bothered us, but then we got used to it.” That seems to be the way the Devil works.

The clincher in the abortion issue, I think, is the support of abortion-advocates for “partial-birth abortions.” Almost all of them support this totally unnecessary form of killing. From this we should all see that it is not the woman’s life or other interests which are their concern, but that something truly diabolical is at work here.

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