Monday, September 19, 2022
Sunday, May 08, 2022
Is Roe constitutional? (yes)
Generally the Constitution gives the structure of the government and the roles of each of the branches, so that the likeliest place to find something specific about abortion is in the Bill of Rights.
The main body of the Constitution, with two exceptions, say what the new Federal Government is allowed to do, and only in the Bill of Rights do we see what things the new Federal Government may not ever do; acts that the Federal Government may not do when it is acting under color of law.
Note that the Federal Government does not always obey the law. The Dred Scott decision ignored the precedent in Yick Wo v Hopkins, the Chinese laundry case of San Francisco, which stood against the "yellow peril" panic of the time, and they instead relied on an earlier case, Plessy v Furgeson, to assert "separate but equal", which became "separate and inferior" for a hundred more years of black suppression and which struck down the Missouri Compromise, and made the Civil War more likely. This was clearly an error since Dred Scott was not a runaway slave but was taken by his master onto the free soil of Michigan, thereby becoming a free man by law. Of course there is more to this case.
The "Lochner Era" was likewise a period of judicial usurpation that argued that people could make any labor agreement they wanted. The unequal bargaining power between the workers and the owner made no difference. And unions were discouraged when their members were not killed. (The Ludlow Massacre.) Citizens United is a current similar example of the court ignoring the obvious, and allowing corruption to infect all branches of the government, despite Ward v. Rock Against Racism.
These remarks are only to point out that the judicial branch is not immune from the spirit of the times and it can take a while for the Constitution that revolutionaries wrote to be defended properly by today's bourgeous technocrats.
It should be recognized that the amendments are not statutes. The acts that they prohibit the new Federal Government from doing are indeed prohibited. But they are also principles; they have implications, or as Roe said, "penumbras". The prohibition against cruel and unusual punishments was not intended to allow cruelty "for no reason"; ie cruelty when in pre-trial detention, or to allow police to chase protesters to hit them with clubs, shoot them in the back, or run over them with their cruisers.
The First Amendment attempts to stop the government from deciding meta-physical questions. And if they feel forced to make some such decision (like when is a foetus a person), that they do it on a very tentative basis, and as a practical matter no more based on morality, which is subjective, than which side of the road to drive on. And it should be a decision that essentially everyone can live with, although there might be a lively discussion as to which opinion is correct.
So we allow gambling even though some people are destroyed by it, and we allow alcohol even though some people are destroyed by it, and we allow war even though some people are destroyed by it, even in our families. The veterans of Stalingrade, who when they get together, just sit, for what can be said about an unthinkable abomination?
Roe, in its original tri-mester formulation, seems to come as close as can be done to placate "both sides". The only claim that the general population can make against a woman who seeks an abortion is that she is participating in a conspiracy to commit aggravated genocide, or at least murder. But this relies on the determination of when a new person comes into being. This is a social decision not a scientific one. Science can say that the flesh is human and is alive and has a new genome, but this is far from the central question of personhood, which is as hard as the problem of consciousness. Some may hold that a person should be recognized as coming into existence at conception for tax purposes, but this is far from settling the issue for parents who may have bought furniture for the new baby and named her and are already thrilled about her joy.
Can the courts responsibly come into the home and into the family by forbidding abortion. No one favors abortion aside from the occasional drunk party boy who tells the girl she has no choice, or the macho upper class serial abuser. Or the Chinese government with the one-child policy and sex selection of the past.
The third amendment seeks to establish the right of the family to have dominion in the home. Not unlimited to be sure, but not to be invaded by those who care nothing for the thoughts of those who live inside.
Roe may not be perfect, but it is at least some protecion against sexual abuse, or rape, if not fully fair to the woman. Two of the judges who voted for overturning Roe should have recused themselves. Thomas and Cavinaugh.
The main body of the Constitution, with two exceptions, say what the new Federal Government is allowed to do, and only in the Bill of Rights do we see what things the new Federal Government may not ever do; acts that the Federal Government may not do when it is acting under color of law.
Note that the Federal Government does not always obey the law. The Dred Scott decision ignored the precedent in Yick Wo v Hopkins, the Chinese laundry case of San Francisco, which stood against the "yellow peril" panic of the time, and they instead relied on an earlier case, Plessy v Furgeson, to assert "separate but equal", which became "separate and inferior" for a hundred more years of black suppression and which struck down the Missouri Compromise, and made the Civil War more likely. This was clearly an error since Dred Scott was not a runaway slave but was taken by his master onto the free soil of Michigan, thereby becoming a free man by law. Of course there is more to this case.
The "Lochner Era" was likewise a period of judicial usurpation that argued that people could make any labor agreement they wanted. The unequal bargaining power between the workers and the owner made no difference. And unions were discouraged when their members were not killed. (The Ludlow Massacre.) Citizens United is a current similar example of the court ignoring the obvious, and allowing corruption to infect all branches of the government, despite Ward v. Rock Against Racism.
These remarks are only to point out that the judicial branch is not immune from the spirit of the times and it can take a while for the Constitution that revolutionaries wrote to be defended properly by today's bourgeous technocrats.
It should be recognized that the amendments are not statutes. The acts that they prohibit the new Federal Government from doing are indeed prohibited. But they are also principles; they have implications, or as Roe said, "penumbras". The prohibition against cruel and unusual punishments was not intended to allow cruelty "for no reason"; ie cruelty when in pre-trial detention, or to allow police to chase protesters to hit them with clubs, shoot them in the back, or run over them with their cruisers.
The First Amendment attempts to stop the government from deciding meta-physical questions. And if they feel forced to make some such decision (like when is a foetus a person), that they do it on a very tentative basis, and as a practical matter no more based on morality, which is subjective, than which side of the road to drive on. And it should be a decision that essentially everyone can live with, although there might be a lively discussion as to which opinion is correct.
So we allow gambling even though some people are destroyed by it, and we allow alcohol even though some people are destroyed by it, and we allow war even though some people are destroyed by it, even in our families. The veterans of Stalingrade, who when they get together, just sit, for what can be said about an unthinkable abomination?
Roe, in its original tri-mester formulation, seems to come as close as can be done to placate "both sides". The only claim that the general population can make against a woman who seeks an abortion is that she is participating in a conspiracy to commit aggravated genocide, or at least murder. But this relies on the determination of when a new person comes into being. This is a social decision not a scientific one. Science can say that the flesh is human and is alive and has a new genome, but this is far from the central question of personhood, which is as hard as the problem of consciousness. Some may hold that a person should be recognized as coming into existence at conception for tax purposes, but this is far from settling the issue for parents who may have bought furniture for the new baby and named her and are already thrilled about her joy.
Can the courts responsibly come into the home and into the family by forbidding abortion. No one favors abortion aside from the occasional drunk party boy who tells the girl she has no choice, or the macho upper class serial abuser. Or the Chinese government with the one-child policy and sex selection of the past.
The third amendment seeks to establish the right of the family to have dominion in the home. Not unlimited to be sure, but not to be invaded by those who care nothing for the thoughts of those who live inside.
Roe may not be perfect, but it is at least some protecion against sexual abuse, or rape, if not fully fair to the woman. Two of the judges who voted for overturning Roe should have recused themselves. Thomas and Cavinaugh.
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