Posted on 03/14/2002 5:50:19 AM PST by wwcc
Supreme Court Justice Antonin Scalia, during a luncheon in Buffalo on Wednesday, re-emphasized his view that women don't have a constitutional right to an abortion. His belief flies against the court's majority decision in the 1973 case Roe v. Wade, which found a constitutionally protected right of privacy that covers abortion.
"My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."
At times flashing a prickly wit, Scalia also criticized the process for selecting new Supreme Court justices as being highly political today.
And he defended the court's 5-4 decision in the 2000 presidential election that stopped ballot counting in Florida and handed victory to George W. Bush.
The recurring theme throughout Scalia's 40-minute speech, and in answers to audience questions, was the importance of a strict, limited interpretation of the Constitution.
"It says what it says, and it ought not to be twisted," he said.
Scalia, who is the foremost conservative member of the Supreme Court, was appointed by President Ronald Reagan in 1986. .
Scalia devoted the bulk of his speech to the clauses in the First Amendment that ensure government may not restrict people's religious practices, nor impose religion on anyone.
Judicial rulings on those clauses - and the entire Constitution - must be based on their text, the authors' original intent or historical practice, he said.
In quoting George Bernard Shaw - using a phrase later appropriated by Robert F. Kennedy - Scalia said those who believe in judicial reshaping of the Constitution "dream things that never were."
The appropriate way to deal with an issue that demands updating judicial precedent or the Constitution is by legislative action or, where appropriate, a constitutional amendment.
"We have an enduring Constitution, not a living one," Scalia said.
After his prepared remarks, Scalia took questions and delved into several hot-button issues.
He dismissed the idea that abortion is a constitutionally protected right, but he also said the Constitution doesn't explicitly prohibit abortions, either. He indicated the issue ultimately should be decided by a constitutional amendment.
The fight over abortion rights already is heating up, as pro-choice groups dig in for a battle whenever Bush gets to make a Supreme Court appointment.
Picking up that theme, Scalia blamed the the bitter political fights over court nominations on the belief that judges are free to rethink the Constitution.
"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said.
Scalia defended the court's decision in the 2000 balloting debacle, saying it properly returned authority in the matter to the Florida Legislature.
Organizers said 930 tickets were sold for the event, sponsored by the Chabad House of Western New York and the University at Buffalo Law School.
I believe that the decision in Roe v. Wade was an arguably sensible and pragmatic decision, not an arrogant, intolerant and pseudo-principled decision issued from an ivory tower of pretentious goodness. I do not wish for upcoming legal battles over crossing state lines and obtaining medical treatments in a timely manner. Just reading what decent people think about the depravity of abortion for convenience would make me much happier. May the Lord have mercy on me for this.
In other words there were no non-sequiturs, regardless of whether or not you liked the substance of the arguments.
True.
. . . and all claims to absolute truth.
"We hold these truths to be self-evident . . ." Sorry, that's enough of a nod to absolute truth for me.
And without getting terribly tied into logic, the set of absolute truths must be nonempty.
I refer you to "The Age of Voltaire"
The French Enlightenment gets a lot of ink, but Americans were (naturally) more influenced by English thinkers.
It is therefore not reasonable to think they would write found a country based on the absolute immutability of some document.
Then why bother writing it down if it means whatever you want it to mean? And why bother having an amendment process?
This is true and the "big idea" of the age. Rhetoric has very little to do with it.
Actually they were largely a group of lawyers
Some were, some weren't. Washington and Jefferson were planters. Franklin was . . . well, Frankin. Adams and Henry were lawyers IIRC. They were a remarkably diverse group considering that they were all upper class.
Actually political discourse at the time was far more bitter and ill-mannered than today.
Certainly that is true of newspapers. I would argue that the stakes were higher, however. I had a roommate who was from South Africa and he had a party once with a lot of his friends -- mostly white and Indian in descent, but they grew up in Africa. Elections are huge. It means the difference, sometimes, between life and death. I'm sure the same stakes held at the founding of the Republic. Conquest or descent into tyrrany was a real possibility.
Hey, exmarine! By my count, this makes two times out of three we agree! We may turn out to be allies yet!
Keep up the good fight.
So a state can infringe on a person's liberty, but not life, based on his age? Patrick Henry said the former was more important.
Your question is valid, though. I'll attempt to answer. A person is a single person when he can live independently. Prior to that he is two people, the oldest of whom has a IVth amdendment right to be secure in her own individual person. I (and I should also say the 10th Amendment) leave it up to the State legislatures to decide when that point is, constrained by the US Constitution, their State Constitutions and State Courts. States can decide when liberty and life begins. The Constitution has prohibited the States from considering race, prior condition of servitude, and in the case of voting, sex, ability to pay poll tax, or being 18 or older, when deciding. But the states did not delegate that decision making power to the Federal government (unless you consider the 14th Amendment valid :).
Even, hypothetically, if the 14th Amendment is considered valid, there is another amendment, unique in that it restrains individuals (not government) from acting on individuals, and that is the 13th Amendment. I hadn't thought of it before, but there is a right in there, of a mother to not allow her body to involuntarily serve the needs of another's. Babies can't harness their mother's bodies for labor. 14th Amendment due process of law requires the mother's liberty to be protected as well, so the 14th Amendment cancels itself out.
Now for the substance. Influenced as they were by Hume, Locke, Voltaire, etc. and the wars which resulted from religious claims to absolute truth they would not have thought it possible to escape from politics into some higher realm. Antagonistic as they were to monarchy and aristocracy they would have sought some other form. They chose democracy but were well aware of the historical precedents. They wanted to avoid the mob and the demagogue. Hence checks and balances. But they were lawyers and scholars too and knew that interpretation would always be a problem. I don't believe they thought they could rise above it to some exalted realm in this case either.
We hold these truths to be self-evident is a political statement - a statement about where they intend to begin. Like axioms. They have to start someplace and they weren't going to try to prove everything.
You make a false inference. "The Age of Voltaire" is not about French thinking but "A History of Civilization in Western Europe from 1715 to 1756 with Special Emphasis on the Conflict between Religion and Philosophy" (sub-title).
Why bother writing it down if it's not absolutely immutable? Why bother with any laws, or any theories? The fact that something is not absolutely immutable doesn't imply that it can mean anything you want it to mean. Nor does it mean instability. The founders recognized not just the problem of interpretation but the problem of stability over time. They recognized that our laws would have to change in accordance with changed circumstances and new experience. Things that could not be anticipated by human beings. So they built structures to accomodate change while retaining continuity and stability. The amendment process is one of those structures.
Rhetoric was a very important part of the education of every literate person of the time. Especially so if they intended to enter politics.
Ok, upper class is just as good. See the above.
The stakes were higher and the spin greater. Just as happens today. Human nature hasn't changed.
To use an obvious example. I'm very sure the sun will rise tomorrow.
The more complex the issue the greater the uncertainty.
As you pointed out in an earlier post this is not entirely in conflict with religious or traditional ideas. But there are conflicts and they surface whenever science or philosophy or politics or economics contradicts received wisdom.
But by defending "interpretation" instead of "an interpretation" of a given idea, you are simply stating that a wide latitude of views can hold on plain language laws. This undermines the legislative process and, indeed, the checks and balances themselves, since it strips the legislature of their ability to legislate their intent.
We hold these truths to be self-evident is a political statement
It is a statement of philosophy: "They are self-evident. We won't argue them. Either you believe them or you're a moron." That is enough absolute truth for me.
The fact that something is not absolutely immutable doesn't imply that it can mean anything you want it to mean.
Sure it does. It's just another interpretation. You can't say it's a wrong interpretation, because that's imposing an absolute truth.
They recognized that our laws would have to change in accordance with changed circumstances and new experience.
They did no such thing! Jefferson, for one, assumed that the Constitution would not survive long. He expected another revolution. But for the time that it was in effect, it would not be twisted simply to justify the whims of jurists.
That's not what I meant. It is irrelevant to the notion that "reason" was a new idea and was appealed to in discussions. "Rhetoric" is not an argument to which one appeals. It is a tool by which one persuades. Rhetoric was the hammer, but reason was the nail, holding together concepts.
Of course, I am of the personal belief that rhetoric exists to obscure ignorance and idiocy and I work to deconstruct it whenever possible, but I know of its role in 18th century educated circles and, in fact, in many areas today.
Wide is a matter of interpretation.:)
Regardless of what I think and whether or not my view has unfortunate consequences, that is the world we live in and always have.
It is a statement of philosophy: "They are self-evident. We won't argue them.
We won't argue with them in this context. In other contexts they argued about them constantly. Besides, if they were truly absolute, and the position was strictly philosophical and not political, how could they tolerate slavery?
Sure it does. It's just another interpretation.
If I say strict construction is the proper way for the Supreme Court to interpret the Constitution and you reply no the Court should regard the Constitution as chocolate pudding you'll not get much of a hearing.:)
They did no such thing!
Jefferson believed what he believed and others likewise. None-the-less no other explanation that I can think of explains the amendment process, or the need for a legislature, or the special provisions governing emergencies, etc. It's been awhile since I read the Federalist papers but it seems that was specifically discussed. I would be surprised if it wasn't since it's so obvious.
One is persuaded by many things besides reason. The tool - Rhetoric - encompasses those things also. It must. How one uses the tool depends on one's motive and character. Again, human nature hasn't changed.
My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."
Bump.
Amendment 9:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 13:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
An umbilical cord can not be a chain by which the mother involuntarily serves the child.
Again though, if the child is capable of independent life, the mother can not be allowed to kill it, born or unborn.
Without life there can be no liberty, Patrick Henry understood this.
A person is a single person when he can live independently.
This proposition is entirely incorrect because this would give the states cause to kill children until the age of, lets say about, 8.
Prior to that he is two people,
This statement is also incorrect and the human genome proves it indisputably. The argument that a baby is the same as an appendix is fallacious.
As for your 14th amengment argument, I don't agree with it. States need to be constrained just like the federal government does. If man was incapable of evil, then government would be superfluous but its not. In general, I support federalism and the tenth but not where generally agreed to unalienable rights are concerned.
The right to life should be protected by the constitution of the United States and I think it is. The right to smoke dope should be left to the states.
The umbilical cord is present, figuratively, until the age of majority. The mother and the father made their choice and it is their duty to serve and raise that child until that child reaches such an age as to be able to do that itself.
Again though, if the child is capable of independent life, the mother can not be allowed to kill it, born or unborn.
Independent life? Again, by this definiyion, states could allow open season until the age of 8. Do you really believ that? Babies have survived quite nicely arriving in this world after 21 weeks in the womb.
The umbilical cord is present, figuratively, until the age of majority. The mother and the father made their choice and it is their duty to serve and raise that child until that child reaches such an age as to be able to do that itself. -jwalsh07
Not if they wish to give it up for adoption. They can always rid themselves of the responsibility, legally. After a certain age, say past 6 months after conception, the State can decide to protect the capably independent life. If the state becomes aware of parental neglect of a 3 year old, it may sieze the child. If the child dies because the parent starved it or drowned it, as in Texas, then the parent is guilty because possession is what entails responsibility for the child - not the initial choice to have sex. The parents only have an obligation to sustain the minor life while they legally posess it, and claim it (literally or figuratively) as a dependent.
Again though, if the child is capable of independent life, the mother can not be allowed to kill it, born or unborn.- h.akston
Independent life? Again, by this definiyion, states could allow open season until the age of 8. Do you really believ that? Babies have survived quite nicely arriving in this world after 21 weeks in the womb. - jwalsh07
You misunderstand my definition of independent life. Independent life means it doesn't have to physically attach itself to another person. ("Secure in [t]he[i]r person" - IVth Amendment].
You should lobby your state to pass an abortion law that says no abortion can be allowed after 21 weeks in the womb. I fully support your right to do so, and your state's right to pass such a law. Bless Nebraska for trying to outlaw the PBA. I'm just saying that there is a foundation for a coherent, constitutional, legal position for abortion.
Each state has a constitution that restrains it.
If man was incapable of evil, then government would be superfluous but its not. In general, I support federalism and the tenth but not where generally agreed to unalienable rights are concerned.
The very question we're dealing with is when does the unalienable right to life begin? It begins when it is capable of existing, without taxing another life's bloodstream, lungs, and digestive system for its own sustenance. Until it can be independent, it is not unalienable. This is also the only way out of the "rape and incest" trap. Anti-Abortionists are going to have to learn that you can't compel a woman to bear a rapists' child - that's unconstitutional - the IVth and the XIIIth make it so.
The right to life should be protected by the constitution of the United States and I think it is. The right to smoke dope should be left to the states.
I will go along with you with the caveat that it is the right to independent life, that must be protected. Until a life can be independent, it must infringe on equally important others' lives and liberty. The right to abortion is a balance between the mother's and child's rights.
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