Posted on 11/12/2004 9:07:10 AM PST by cpforlife.org
That's NOT what it says. it does NOT say ONLY (following your own principle of letteralism). It says:
"NOR shall any state deprive any person of life, liberty or property, without due process of law;
In other words, by your own logic, while citizens enjoy certain priviledges, etc., it is ALSO true that you cannot willy-nilly murder ANY innocent person (born, unborn, non-citizen, being incidental) without due process.
btw, just out of curiosity, how do you think judge Bork would interpret the 14th amendment re non-citizens (e.g., legal residents, etc.). non-applicable?
The meaning comes from the specific words used.
The words could've said what you wanted them to say, but they don't.
for instance, i do no think that wording was meant to allow innocent tourists from another country to be deprived of life without due process, or of unborn babies, say in the 8th month of pregnancy, EVEN IN THAT TIME PERIOD.
Sorry, you would be incorrect.
Foreigners legally present in the United States are subject to the jurisdiction of the state in which they are physically present.
Unborn persons are specifically outside the jurisdiction of the 14th Amendment.
Quite the contrary. I am arguing for original meaning.
No, you are arguing for what you wish the original meaning was.
You are arguing against original meaning. You might want to read Scalia's book on federalism, wherein he makes a strong case against LETTERISM/"strict constructionism" and the original meaning.
Great. Scalia's a judicial activist? Hope he doesn't start getting loopy in his golden years, then.
yes, believe it or not, scalia argued AGAINST "strict constructionism", if what is meant is a wooden literal interpretation that ironically veered from the original MEANING.
One more time: the MEANING comes from the WORDS USED.
and, no, the word "born" in the 14th amendment was not MEANT to EXCLUDE unborn children in the original understanding as you might think. Rather "born" was want to draw distinctions between foreigners.
Unfortunately, that part of the record for the 14th Amendment's adoption is extremely weak. Specifically, abortion was, in several states of the Union, legal at that time. There was not one shred of discussion for or against protecting unborn children in the debate on the 14th.
That seems an arbitrary argument. what makes you think that abortion was outlawed merely because it could threaten the health of the mother?
The proceedings of the state legislatures at the time these laws were debated.
No, it's not an example of denying a person the right to life.
The Constitution is silent on when one becomes a person. Common law holds that being born is a prerequisite to becoming a person.
"nor shall ANY PERSON be...deprived of LIFE, without due process of law"
Please note there is nothing in the context of this amendment that limits said interpretation to citizens or already born persons as you attempted to argue re the 14th amendment.
The constitution clearly protects ALL persons from certain unwarranted deprivations, whether or not many (or even most) judges have not thought it through.
In other words, the state may not kill you, incarcerate you, or deprive you of your property without due process.
BTW: care to guess how cases of abortion caused by the actions of a third party (i.e., Jonh Doe negligently or willfully causing spontaneous abortion without the consent of the mother) were adjudicated?
As torts. Not as murder.
The unborn child was legally considered property.
The due process clause would forbid forcible abortion by the state on that basis.
You would need the equal protection clause.
Now, let's look at the equal protection clause:
"...nor deny to any person within its jurisdiction the equal protection of the laws."
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside..."
Unborn children are not within the jurisdiction of the 14th Amendment.
Problem: under the common law, unborn children are not persons.
Slight correction, but a very important one: the meaning comes from the words as they are used IN CONTEXT. Words, in isolation have usage, while sentences convey meaning. but you can follow that more by reading Wittengstein, etc.
The words could've said what you wanted them to say, but they don't.
They most certianly do. The language clearly says any PERSON. The burden of proof to deny that the 5th and 14th amendments protect the unborn rests with the one who argues the baby is NOT a person.
Foreigners legally present in the United States are subject to the jurisdiction of the state in which they are physically present.
Unborn persons are specifically outside the jurisdiction of the 14th Amendment.
Woooah. Are you arguing that foreigners are subject to the jurisdiction of the U.S. while the unborn are not? You are contradicting your own reasoning. see, the reasoning you are using to disallow the unborn from the 14th amendment protections would also disallow foreigners the same protections (if you were correct), since the amendment specifies "citizens".
if "citizens" does not rule out "foreigners", then neither does "born" rule out "unborn".
Also, please do NOT forget the 5th amendment when you are reasoning through this. The 5th amendment is STILL applicable, and the 14th does not circumvent it.
No, you are arguing for what you wish the original meaning was.
No, that would be you. You wish the 5th and the 14th amendments did not refer to ANY person.
Great. Scalia's a judicial activist? Hope he doesn't start getting loopy in his golden years, then.
To the contrary. He understand what original meaning does, and does NOT mean. i highly recommend that book before you knock it. He debates that turd Larry tribe and others in the pages of that book.
One more time: the MEANING comes from the WORDS USED.
Again, Correction: words are defined in context. words don't have an inherent meaning. They could mean any number of things depending on the context, and literary device (hyperbole, metaphor, etc.) employed. For instance, the "bark" of a dog is not the "bark" of a tree.
Specifically, abortion was, in several states of the Union, legal at that time.
The fact that the federal government and the states tend to be inconsistent is hardly the fault of the unborn or my interpretation of the 5th and 14th amendments which is consistent with the principles and the original meaning.
There was not one shred of discussion for or against protecting unborn children in the debate on the 14th.
You mean that we know of? I'm sure they were preoccupied with the slavery issue. That hardly means the principles are not directly applicable to the unborn, any more than the fact that the internet was not on the mind of the framers while they drafted the "commerce among the states" clause. The principles are still PERFECTLY applicable.
The proceedings of the state legislatures at the time these laws were debated.
Are you claiming to have read all of them? Maybe you would like to link me to your sources and i'll be glad to review.
re the point at hand, does it matter?
As torts. Not as murder.
What is happening, or does happen, does not equate to what ought to be the case. If that were true, there would be no tight to bear arms. Just because judges and the congress don't understand the 2nd amendment, doesn't make their decisions the truth.
The unborn child was legally considered property. The due process clause would forbid forcible abortion by the state on that basis.
So were slaves. See my above comments. This does not change the fact that the unborn are persons, and thus protected by the 5th AND 14TH amendments when correctly interpreted.
Let me ask you a question: Do you grant that the unborn fetuses are persons?
"...nor deny to any person within its jurisdiction the equal protection of the laws." "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside..." Unborn children are not within the jurisdiction of the 14th Amendment.
False disjunct. That's not what it says. the words you quoted are in additiona to, not in subtraction to, the words that protect ANY PERSON from being deprived of life. PLEASE also remember that 5th amendment when you're considering the 14th.
Problem: you assume one common law with one interpretation.
problem. even if true, personhood is not determined by common law. if the common law of some societies were to define, say, LA Laker basketball players (or certian rappers) as subhuman (i.e., non-persons), would this make it true?
So now you're going to argue that case law should be made on the basis of debate that we have no record of...
Dude, let's tally up the box score. You have argued:
1. Words and sentences mean what you wish them to mean. A typical post-modernist argument.
2. We should use, in the effort to determine legislative intent, nonexistent debates that you wish to have taken place.
Are you claiming to have read all of them? Maybe you would like to link me to your sources and i'll be glad to review.
Ah, yes: another "if it isn't on the Internet, it doesn't exist" constitutional scholar. Go to a library and look up the dead tree journals of various state legislatures.
Unless statutory law (either by constitutional amendment or overrides the common law definition, personhood before the law is determined by common-law definitions of personhood.
Kindly note that under common law, abortion was treated as a potential tort, not as murder.
if the common law of some societies were to define, say, LA Laker basketball players (or certian rappers) as subhuman (i.e., non-persons), would this make it true?
Sorry, I don't deal in silly hypothetical cases. I leave that to judicial activists.
Personally? I do.
Legally? My personal preferences don't matter a hill of beans unless I can enact statutory law to that end.
To the contrary. YOU'RE the one who brought it up as if it would affect the argument, lol.
Dude, let's tally up the box score.
Yes, LET'S!
You have argued: 1. Words and sentences mean what you wish them to mean. A typical post-modernist argument.
straw man fallacy...and psychological projection.
2. We should use, in the effort to determine legislative intent, nonexistent debates that you wish to have taken place.
another straw man argument. YOU brought that puppy up. so it was YOU who are guilty of your own charge. I responded to it.
Ah, yes: another "if it isn't on the Internet, it doesn't exist" constitutional scholar.
You really like that straw man fallacy. it's also a ed herring. You never answered my questions. Are you claiming to have read them all? Do you have some links to which i might review what you are maintaining?
Pooh, even some book titles that go into that subject re the legislatures would be cool? that was not a slam on you. i was really serious if you had some particular publications in mind that helped you form your opinion.
you might want to reword that, because i'm not sure what you're saying.
Kindly note that under common law, abortion was treated as a potential tort, not as murder.
irrelevent EVEN if true. Kindy note that post natal abortions of slaves was treated not as murder either (slaves were viewed as mere property, too). That is hardly relevent to the point at hand.
At one time in our countries history, there existed a contradiction in constitutional principles NOT because the 5th amendment was insufficient, but because many insisted as treating blacks as "inferior beings" and "property", that is, non-persons for the purposes of the 5th amendment.
(Gee, seems to be an identical problem we face with those who would deny 5th and 14th amendment protections to the unborn).
The people therefore embraced an internal inconsistency within the constitution (and in the declaration of indepdendence, for that matter) which was allowed to stand because the framers knew they couldn't get it ratified if they ventured further at the time.
The 14th amendment was later added to extend the rights to those who were not viewed as persons before. n this case, negros.
the fact that some people today make the same mistake re unborn children that the SCOTUS did re blacks in the Dred Scott case is hardly a reason to deny said unborn PERSONS the constitutional protections of the 5th and 14th amendments.
tame:if the common law of some societies were to define, say, LA Laker basketball players (or certian rappers) as subhuman (i.e., non-persons), would this make it true?
pooh:Sorry, I don't deal in silly hypothetical cases. I leave that to judicial activists.
In other words, you don't have an answer to a legitimate question raised against your fallacious position. Point made. If not, answer why the analogy is not applicable.
pooh: Personally? I do.
As opposed to what? NON-personally?!? IMpersonally?!?
You seem reluctant to commit. If i asked you whether blacks are persons, would you answer "Personally? Yes"?
Legally? My personal preferences don't matter a hill of beans unless I can enact statutory law to that end.
Yes, they most certainly do. Ask Abe Lincoln whether his personal preferences mattered even when it caused him to buck the SCOTUS. Or the personal preferences who sided with the abolitionists in the union.
PERSONHOOD is not primarily defined by statutes, but by the laws of God. That's why the declaration of independence states "we are endowed by our CREATOR with certain unalienable rights. Tha among these are LIFE, liberty and the pursuit of happiness".
The whole historical conservative position is that the state is not an the all powerful authority that grants (or "loans") rights, but rather GOD grants those rights. They are God given.
The state has a certain function, to be sure, but your value as a PERSON (or a black man or an unborn child) is not derived from the state (as communist leaders--and others-- erroneously assume), but from God.
In reply to your comment, let me ask the question again this way:
Before the civil war, the emancipation proclamation, and the following amendments, was a black man truly a person? Or was he a non-person just because the court said so?
Was the SCOTUS correct, and Lincoln wrong in your opinion?
The SCOTUS cannot willy-nilly define the value of people as it sees fit. that brings us back to the whooe point of this thread: judges (like Gonzalez) have a responsibility to do what is right and prudent when it comes the most fundamental right of all, LIFE, regardless of the judicial fiat and oligarchy of the SCOTUS.
That is why Alexander Hamilton wrote about the 3 EQUAL branches of government.
...actually Hamilton wrote that the judiciary should be the WEAKEST of the 3 branches, probably because he knew of the inherent danger of unelected oligarchies simply choosing to define away the constitutional and God given rights of the citizens.
Either (a) you really did understand it, and didn't like it, or (b) you really need to quit pretending you know anything at all about the law.
irrelevent EVEN if true.
Sorry, it is extremely relevant, unless you have written and passed into law statutes to the contrary.
You want the guy in black robes to make it up on the fly from the bench and turn abortion into a federal matter.
At one time in our countries history, there existed a contradiction in constitutional principles NOT because the 5th amendment was insufficient, but because many insisted as treating blacks as "inferior beings" and "property", that is, non-persons for the purposes of the 5th amendment.
the fact that some people today make the same mistake re unborn children that the SCOTUS did re blacks in the Dred Scott case is hardly a reason to deny said unborn PERSONS the constitutional protections of the 5th and 14th amendments.
Ever hear of the 13th amendment?
BTW, there were whites who were slaves, too. I see you're using the race card...again. Like a dog returning to his vomit, a liberal will return to the same moronic argument, and then pat himself on the back because he thinks he's clever.
Sorry, but the common law requires that one be born before being considered a person. It also treats abortion as a potential tort.
If you want this changed, you need to go to your legislature and get laws passed that say what you want to say. I know that it's hard work, and that you'd much prefer to have five judges simply outlaw abortion by judicial fiat--just like every other liberal.
In other words, you don't have an answer to a legitimate question raised against your fallacious position. Point made. If not, answer why the analogy is not applicable.
Analogy not applicable because your case does not exist, will not exist, and you are thus guilty of wasting my valuable time by arguing like a liberal moron.
tame, this is the third time you have attempted to suggest that I am a racist.
Cease and desist from these personal attacks.
Read the proceedings of the state legislatures in question.
"Give me liberty or give me death"
Children are routinely deprived of liberty, forced to go to school, for example, and liberty is more important than life, as Patrick Henry observed.
The justification for this is their dependence.
"Again, your line of reasoning would allow parents to dispose of their dependent children."
Rubbish. As I said, governmentally protectable life begins when that life can sustain itself without violating the security of another's person. That does not allow parents to "dispose of their dependent children." I have achieved a balance with my line of reasoning, between life and 4th Amendment liberty - both of these are unalienable rights.
Explain why your line of reasoning does not force a woman to endure the violation of the security of her person by a rapist's spawn.
Because the "rapist's spawn" committed no crime. It has done nothing to waive its right to life.
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