"G. Wood" wrote in message
om...
"Ed Huntress" wrote in message
et...
As a conservative yourself, G.W., I'm surprised and disappointed to see
that
you apparently grant only those rights that are spelled out in the
Constitution. The Constitution doesn't have to say that abortion, for
some
reason or any reason, is "right." What it has to say is that it's wrong;
or,
at the very least, it has to say explicitly that the government is
granted
authority to legislate about the subject in question. One way it could
do
that is to define when a fetus acquires the right to due process, but it
makes no comment upon that at all.

Thus, there is no such legislative authority granted in the
Constitution. So
a case like this reverts to a question of rights, potentially rights in
conflict. The basis on which the case was decided, and the present law
of
the land, is that there is no basis for the government to decide the
controversial question of when life begins. And so it defaults to the
rights
that *are* established, which includes the right to life of the mother
and
her privacy.

This sounded good until I thought about it. Do you mean to say that
all things which are against the law must be specifically spelled out
in the constitution? Are incest or polygamy or child porn or a
hundred other things rights? I don't believe that the constitution
specifically says they are wrong but we still have laws against them.
Maybe since they aren't specifically spelled out in the constitution
we could legalize them under rights which *are* established like the
right to life of the perpetrator or his privacy.

You're right, I expressed that badly. I was trying too hard to hoist the
conservative position on its own petard. g

I'm really wary of boiling this down to a few principles because it can
start an endless string of arguments about exceptions and caveats, etc.,
but, for the sake of correcting that impression I gave above, let me try:

Regarding the authority of Congress to make laws under the Constitution, the
purist point of view is the one I gave above. Congress's authorities are
theoretically explicit and severely limited.

In practice, however, the Court has almost always deferred to Congress's
authority except when it conflicts with a right. If there is no conflict
with established, individual rights, or a conflict between federal authority
and states' "rights," the Court usually won't hear a case challenging a law.
Congress or the state gets to legislate as it wants to in those situations.
There always seems to be some plausible interpretation of Congress's
authorities and responsibilities, often expressed as the need to administer
some law or agency or to effect some government responsibility, which can be
construed to grant Congress constitutional authority to legislate. This
drives some libertarians up a wall, but it's the way the Court has always
decided such cases and it's a long-established fact of US law.

But someone will claim a violation of their right for almost anything that
Congress legislates. If they bring a case, the Court first decides if the
case is substantive, if the plaintiff has legal standing to bring such a
case, and if there is a right involved. If there is, the Court may regard
the infringement as something substantial enough to try. If it's tried, the
Court decides if the State has a compelling interest to limit or to deny the
individual right. This is NOT a conservative-versus-liberal issue. In fact,
conservative courts are somewhat more likely to defer to Congress than
liberal courts are in these cases.

Without getting into the more complicated area of states' rights, that's the
historical/legal environment in which cases like Roe are decided. If there
was no conflict between anti-abortion laws and a mother's rights, it's
unlikely the Court would even have heard the case. The anti-abortion
legislation would have been allowed to stand.

But the Roe case had a strong basis on which to determine that a right
potentially had been infringed -- the mother's life and her health -- and a
somewhat weaker one, which is her right to privacy. Justice Rehnquist
(rightly, IMO) said this is stretching the concept of privacy rights too
far. But he failed to show any basis for a compelling interest on the part
of the state to limit that right, so even an equivocal right, like privacy,
will prevail against no right at all. His dissenting argument in Roe was
logically good but legally weak. There appears to be no strong argument
against the crucial point of the Roe decision, which is that the state has
no Constitutional basis on which to establish rights for the unborn. So far,
that is.



If you have a legal argument that opposes this, rather than just an
opinion
about how things ought to be, it will be interesting to hear it.


Right now I'm kinda short on legal opinions but I have no shortage of
personal opinions. It just seems to me that basic logic says it's not
right to kill an innocent human being. The same logic tells me that
when you have two conflicting rights the greater one should take
precedence. The right to be born should be more important than the
lifestyle or the privacy of the parent(s).

That's a common point of view, and moral opinions are the things that drive
our concept of rights in the first place. So I'm not arguing against your
opinion. It could one day become the strongly prevailing one, and it could
then become ensconsed in a Constitional amendment, establishing rights for
the unborn.

In fact, that's how the common law evolved: as the set of prevailing
opinions about what is fair versus unfair, good versus bad, right versus
wrong. Unless you believe in some mystical or supernatural basis for the
rights we have identified in our Constitution, that's where they all came
from to begin with.

But we more than most people in the world tend to defend the rights we've
identified, in our Bill of Rights and through the actions of the courts to
uphold individual rights, against the whims of popular opinion. We try to
stick to that principle even when it hurts. It makes a lot of people angry
at the courts. That, BTW, is a good indicator that they're sticking to
principle in a lot of cases where it would be easier to pander to popular
opinion. Lots of people hate one thing or another about the way courts
decide cases of rights.

If you buy our concept of individual rights and if you're prepared to accept
decisions that you don't like, but which adhere to strict and honest
interpretation of constitutional principles, and to the logic that derives
from them, you have one hell of a job ahead of you to deny the validity and
the decision of Roe v. Wade. The legal reasoning of it is considered hard to
fault. The *result* is faulted by many people. But unless they're willing to
throw principle out the window and to *adjudicate for results* (a
disparaging phrase used to describe courts that pander to opinion, rather
than sticking to constitutional principle), the only legitimate recourse for
them is to work for passage of a Constititional amendment.

--
Ed Huntress
(remove "3" from email address for email reply)