Balkinization: The Whole Constitution Pledge

Comments:

The name "constitutional progressives" is itself a contradiction in terms. The founding fathers of progressivism openly attacked the Constitution for its limited government and for fencing off individual rights (most especially property rights) from government abridgment. Over the past century, progressive courts have gutted the limits of Articles I and III by creating the administrative state, Commerce Clause, Contracts Clause, Takings Clause, Free Exercise Clause, Second Amendment until Heller and the Tenth Amendment among other provisions. Most recently, these same "constitutional progressives" supported Congress acting far in excess of its enumerated powers to regulate interstate trade to order citizens to buy government approved health insurance and granting HHS and other bureaucracies the power to direct every substantive business operation in the health insurance industry.

Any genuine progressive or socialist who takes the "whole constitution pledge" does so in ignorance or bad faith.

A primary goal of the Tea Party is to reverse the progressive legal project to gut the written Constitution to turn it into progressive common law. The means suggested to accomplish this goal vary as much as do the supporters of the Tea Party, but the goal is the same.

# posted by

Bart DePalma : 2:44 PM

Our yodeler's sole pledge is with venom, hatred and vileness to challenge everything Obama all the time.

# posted by

Shag from Brookline : 3:47 PM

The teabagger's love for the "Constitution" is of course a love for a document that exists only in their minds. Much as the America they pine for also never existed.

Their cherry-picking is a natural cheat for them, exactly what you might have prescribed for avoiding reality they don't like: ignore it. Pretend it doesn't exist. Failing that, deplore it, and pretend it's a corruption and abomination of the original.

Of course, it's hardly a new cheat. It has been a favorite of those selling ideologies throughout history. The only thing notably different about this time around is perhaps the way it's been carried off in despite the ubiquitous evidence that the document doesn't say what it's claimed to. How is it possible in the Internet age for this many people to be so persistently ignorant?

And I think we have the answer: the echo chamber, balkanization. Birthers listen only to other birthers. Teabagger constitutional wacknuts listen only to those like unto them. And so on.

The sad thing is, this suggests that there is a population who simply won't benefit from CAC's series, or any Constitutional scholarship, or even basic understanding. And I'm afraid that's accurate.

But there's also the rest of us. And, thank you.

# posted by

jpk : 4:19 PM

The constitution for many of these conservatives has become an object of idolatry. The story of 'movement conservatism' in its populist form, encouraged by elite leaders, is the story of idols to worship. Reagan, The Nation, the flag, Palin, a person in military uniform, of course Jesus and on and on.

The need or instinct to objectify and idolize people and concepts comes to dominate their thoughts and emotions.

# posted by

rapier : 4:25 PM

a person in military uniform,

# posted by rapier : 4:25 PM

Unless that person is gay, apparently.

# posted by

Bartbuster : 6:27 PM

what does tea party think of the failure of era amendment to receive ratification by 3/4 of the states

# posted by

JohnLopresti : 6:57 PM

RE Bart

Well first I apologize for infecting this tread with non legal junk.

My point was about the image of a person in uniform. The person him or herself, the individual soldier is often problematical like the gay one last night, but the idealized soldier they see and imagine is what drives their emotions and thought.

So it is too that their idealized constitution is perfect. Perfectly in line with everything they believe.

For myself I am for the constitution which grants the maximum amount of freedom to the maximum number of people. Not that this is actually what the constitution was meant to achieve exactly. What it did achieve was a process that conservatives have endlessly tried to beat back.

# posted by

rapier : 8:07 PM

Rapier:

For myself I am for the constitution which grants the maximum amount of freedom to the maximum number of people. Not that this is actually what the constitution was meant to achieve exactly. What it did achieve was a process that conservatives have endlessly tried to beat back.

A constitution establishes the scope of government power and freedom under a constitution is preserved by limiting that power over our lives. If this is what you mean by freedom, come join us in the Tea Party.

# posted by

Bart DePalma : 8:43 PM

I think I sprained an optic nerve rolling my eyes...

So, progressives are for the whole Constitution? Including the 2nd amendment? The 10th? The currently "inoperative" language in the interstate commerce clause, (You know, the part after "to regulate"?)

Proposing to repeal parts of a constitution you don't like, is respect for the very concept of constitutions. It's a way of saying that constitutions, even the parts you don't like, are binding law, and if you don't like them you have to go through the formal steps of changing them, instead of resorting to sophistry to render the parts you don't like unenforced.

# posted by

Brett : 9:07 PM

There's nothing "demonstrably false" about what I wrote. I stated that given those spear-heading the pledge -- not just CAC, but also PFAW, CAP and Senator Kerry -- that skepticism was warranted. I stand by that statement.

I am well aware that CAC has filed briefs in support of enforcing the Second Amendment and the Privileges or Immunities Clause, but the same cannot be said for the others on the list. Senator Kerry, for example, refused to join the majority of his Senate colleagues on pro-gun-rights amicus briefs in Heller and McDonald. PFAW has consistently supported judicial nominees likely to read the Second Amendment (and other provisions) as a dead letter. And so on.

Not only did I not focus solely on CAC, I did not focus solely on the 2nd Amendment and P or I clause either. I also mentioned several other clauses that progressive often downplay or overlook, including the Takings and Contracts Clauses. As Mr. Gans certainly knows, CAC's predecessor organization was arguably the most strident opponent of judicial enforcement of the Takings Clause (and waged a scurrilous campaign against those who thought otherwise). If CAC has turned over a new leaf, I'd love to see the evidence. Ditto if CAC is calling for judicial recognition of the Contracts Clause. But unless Mr. Gans has such evidence, I think my skepticism will remain justified.

Jonathan H. Adler

# posted by

J Adler : 9:54 PM

One problem with the legal argument that because the Constitution is open to revision, calling for the elimination of certain articles is not at odds with Constitutional fidelity is that it undermines the political argument calling for a return to Founding principles of which they only subscribe to a subset, the same as the progressives, apparently.

# posted by

Mike Jensen : 4:04 AM

While the oath requirement in Article VI to "support" the Constitution does not specify the "whole" Constitution, could it be otherwise? Let's hear from the textualists and originalists. If the oath-takers pursuant to Article VI are obliged to "support" the "whole" Constitution, taking the unenforcible pledge by others should be a "slam dunk," including believers in judicial supremacy (although the Constitution does not specifically provide for such supremacy).

# posted by

Shag from Brookline : 6:34 AM

If one pledges:

" ... to honor the whole Constitution, all of it"

can one do so without honoring some decisions of the Supreme Court or certain actions of the Executive and Legislative branches? I happen to think so based upon the "We the People" preamble to the Constitution.

# posted by

Shag from Brookline : 7:08 AM

Anyway, "or that their call for repeal of numerous, deeply-rooted parts of our constitutional order"???

The first thing I notice here is the shift from "amendments", or "clauses of the Constitution", to "parts of our constitutional order". I believe this is a deliberate effort to blur the difference between wanting to repeal parts of the Constitution you think ill-advised, (Chiefly the 16th and 17th amendments, and perhaps a minor revision to the citizenship clause of the 14th; I suppose 2.1 IS a number, and hence "numerous".) to challenging what you consider to be bad precedents.

So, not only would this pledge have precluded repealing Prohibition, it would, prior to Brown, have demanded that one express support for segregation?

Nah, it's a joke.

# posted by

Brett : 7:39 AM

Brett's:

"Nah, it's a joke."

Is it aimed at the post or his own comment on Prohibition, Brown and segregation? Or is it just a throw-away punchline?

# posted by

Shag from Brookline : 8:08 AM

Ok, seriously, (Assuming you're capable of it.) if one had adopted this pledge in 1930, would it not have precluded support for the 21st amendment? If one had adopted this pledge in 1950, would it not have precluded opposition to the settled constitutional doctrine established by Plessy v. Fergusson?

That's why I say it's a joke. I doubt even one of the people pushing it would seriously defend the proposition that repealing a constitutional amendment, or opposing 'settled' constitutional doctrine, is always wrong. They just disagree with particular repeals, particular challenges to existing doctrine.

Well, they should be honest enough to express that disagreement directly, rather than pretending they have some principled opposition to challenging the constitutional/judicial status quo.

# posted by

Brett : 8:26 AM

If Sen. Kerry is a loose link, there are lots of weak links (selective links) on Adler's side. The selective nature of Volokh Conspiracy underlines the point.

Yes, Sandy "The Embarrassing Second Amendment" Levinson supports the 2A. So, does Laurence Tribe and many others. Not enough for Brett, true, but he thinks Heller was a sham, so hard to tell much there.

Not agreeing with their interpretation is not the same thing as "repealing" the Constitution. That's one annoying thing about Scalia et. al. They are wrong on various things, but so is everyone. It's the cocksure disdain they bring, particularly since they are so confused about things so often.

Part of truly honoring the Constitution is recognizing the wisdom of it providing open-ended text that can change in specific application over time as understandings change over time. Thus, nothing was "repealed" from Plessy to Brown (even arguably to Parents Involved).

And, this isn't about protecting only certain parts of the Constitution. Some dissenters aside, the right to keep and bear arms was understood to apply, as shown by the millions owning firearms. Dispute over what exactly was owed to Brooke Shields, I mean Ms. Kelo doesn't mean people are ignoring the Takings Clause etc.

# posted by

Joe : 9:10 AM

Brooke Shields will play Ms. Kelo in an upcoming Lifetime movie. Not sure who will play Justice O'Connor (who presided over the oral argument, Rehnquist ill, Stevens detained). Maybe, she can play herself as part of her civics education program.

# posted by

Joe : 9:13 AM

Joe:

Part of truly honoring the Constitution is recognizing the wisdom of it providing open-ended text that can change in specific application over time as understandings change over time.

How precisely do you honor the limits of the Constitution by ignoring them over time whenever they become inconvenient to the government?

# posted by

Bart DePalma : 10:04 AM

I'm not sure exactly what BP is talking about, but I'm not for ignoring the text when its inconvenient. I don't think this occurs, however, simply because I strongly disagree with what some person or group of persons judges the Constitution to allow.

Brett thinks every opinion in Heller was wrong in some way, which is fine, but it is not a matter of "inconvenience," but him disagreeing an honest understanding of what the 2A means.

The debates, which each side often saying the other side isn't acting in good faith (though usually they at the bottom were), has been going on since 1789.

# posted by

Joe : 11:58 AM

Joe:

I'm not sure exactly what BP is talking about, but I'm not for ignoring the text when its inconvenient. I don't think this occurs...

The progressive administrative state is based on ignoring or interpreting away any meaningful limitation on the powers of the federal government out of the Constitution when they become inconvenient for the government.

The Kelo case is a great example of the former.

See the Commerce Clause defenses of the Obamacare individual mandate for the latest substantial example of the latter.

# posted by

Bart DePalma : 1:43 PM

Following Brett's hypo on adopting the pledge in 1930 for certain results, perhaps the Tea Party, with its faith in the founders/framers/ratifiers, might desire adopting the pledge retroactively as of just prior to the Civil War for the then state of the Constitution. That might satisfy 99.9% of Tea Party members.

# posted by

Shag from Brookline : 1:55 PM

Shag:

Actually, there is a very interesting conversation among Tea Party supporters about using the P&I clause of the 14th Amendment to enforce economic liberties against state abuses like the Romneycare individual mandate. Bachmann has been promoting this idea in her campaign.

# posted by

Bart DePalma : 2:03 PM

The federal government is limited in a myriad of ways, while pre-New Deal various important limits (such as of a segregation nature) were lacking. There was no true Golden Age in that department.

Difference of opinion on interpretation isn't the same thing as "ignoring" be it Scalia or Breyer doing the interpretation.

I don't know of any "Obamacare" legislation. I know of a PPACA, largely the product of the Senate, not some Medicare like legislation that "Obama" was resonsible for.

Kelo was a reasonable application of a century worth of law if arguable.

# posted by

Joe : 2:55 PM

Our yodeler with his most recent comment on the 14th Amendment reminds me of discussions at this and other blogs on the 14th Amendment's "privileges OR immunities" clause as perhaps distinguished from Article IV's "privileges AND immunities" clause. [Emphasis supplied.] Kurt Lash did a lot of work on the history/public meaning of the 14th Amendment but I don't recall if he addressed any differences regarding these similar, but not identical, clauses. And of course the Supreme Court in McCarthy v. Chicago ignored (except for doubting Thomas, J) applying the 14th Amendment's P or I clause rather applying its due process clause for purposes of incorporation of the Second Amendment applying to the States.

The conversation sounds like idle gossip by a desperate Bachmann. There are many reasons Romney should not be President but not because of Romneycare: Romney has almost as many "flip, flop and flies" as our yodeler.

# posted by

Shag from Brookline : 4:59 PM

Not just Romneycare, anyway. That 'National Lampoon's Vacation' moment a while back, where he got stopped by a trooper driving down the road on vacation, with the pet carrier strapped to the roof, and the family dog soiling itself in terror all over the roof of the car, said a lot about his judgment.

# posted by

Brett : 5:35 PM

Ah, the great 1983 Dog Poop Scandal. Surely the death knell of the Romney campaign.

# posted by

Isaac : 6:13 PM

Most recently, these same "constitutional progressives" supported Congress acting far in excess of its enumerated powers to regulate interstate trade to order citizens to buy government approved health insurance...

Worse yet, they stole the idea from constitutional conservatives in order to form some sort of compromise with their opposition and the second most powerful lobby in Washington.

# posted by

PMS_CC : 11:01 PM

Good thing I didn't expect a serious response to those hypos....

Yup, it's a joke, not taken seriously by the people pulling it off.

# posted by

Brett : 12:26 AM

It may be taken seriously by the people that are pushing it, but it seems a bit naive, doesn't it? I understand that it is meant to push back against those who doggedly insist on a selective reading of the Constitution by using their own rhetoric against them ("obey the Constitution--I said obey it!"). However, it just seems odd to praise the amendment process in one paragraph and then turn around and swear to defend the integrity of the document in the next.

Gans seems to be aware of the problematic nature of that tension in his discussion of the various critics, but swerves back to that untenable position in his last paragraph. I would like it better if there was just a bit more meat, something about using the amendment process to change things we don't like. I suppose that would lead to a less sexy pledge name.

I just find the unquestioning loyalty thing a little hard to swallow coming from either end of the ideological spectrum. Repeal is a form of amendment--hate the player, but don't hate the game.

# posted by

PMS_CC : 8:54 AM

The results of the Florida straw poll inspired this:

RAISING CAIN!

If Herman Cain is "able,"
Like the biblical fable,
Plus his Godfather label,
Can he run the GOP table?

*******

I can't wait for Jon Stewart's take on the Florida straw vote.

# posted by

Shag from Brookline : 9:01 AM

The only joke (not very funny) is that some sort of tax incentive to some individuals to buy something is somehow constitutionally a problem or that it was some novel idea.

Also, where does Gans want us to have 'unquestioning loyalty' to the Constitution? Members of government have to swear/affirm to honor the Constitution. This doesn't mean they are denied the ability to complain about the Electoral College or something.

Truly honoring the Constitution is a matter of understanding its flaws and compromises, how applying it is complicated because of this and the fact so many parts seem to contradict other parts. For instance, free speech v. equality v. fair trials v. privacy.

A slice of pizza (of your choice) in honor of Mr. Cain.

# posted by

Joe : 12:43 PM

Shag:

Cain is an outstanding extemporaneous motivational speaker and won the Florida straw poll by pitching to every GOP group he could find a fundamental restructuring of the federal tax code he calls the "999 plan," which proposes 9% flat taxes on income, corporation and sales. Cain also has plans for replacing, not just repealing, Obamacare with market based health care.

Cain does exceedingly well with GOP voters when he can meet them in person or actually get some media coverage. His problem is starting out as a second tier candidate in a field overcrowded with candidates who see Obama in 2012 as Jimmy Carter in 1980.

# posted by

Bart DePalma : 1:39 PM

I saw a preview of Ken Burns' upcoming PBS "Prohibition." It should be interesting, including with respect to the Whole Constitution Pledge. Prohibition was a dumb Amendment by most analyses, much of which rationally should have been recognized when it was being voted on.

At the present time, I am not aware of strong grass roots rationales for the need of any specific amendments to the Constitution. This doesn't mean that the Constitution is perfect; I don't think it is. We don't have a situation similar to the slavery issue that led to the Civil War and its Amendments. Women's suffrage took too long, as did the poll tax repeal. Yes, the Constitution is not perfect and as Joe notes the Constitution can be honored even though there may be disagreements with certain of its provisions. We have had drilled into us that we are a nation of laws and not of men (now women as well). But it is the men and the women who make, execute, enforce and determine (on occasion - about 80 times each year by the current Court) their validity. On both sides of the political spectrum, there can be disappointed with the applications of these laws (especially the Constitution) by men and women. So currently we can honor the entire Constitution without necessarily agreeing with each and every provision, although we are all bound thereby, and especially without agreeing - and sometimes strongly disputing - applications by all three federal branches.

But Prohibition was a dumb amendment and we can all (of proper age) drink to its rescission by Amendment. Maybe new amendments should be considered for our imperfect Constitution, but there is no strong commitment on what to amend. Perhaps if Sandy Levinson were back in the fold, we might get his view, including via the Convention route in Article V. By the way, mls at his Point of Order has several interesting posts on the amendment process via Convention, including concern with a possible runaway Convention (which has been discussed at this Blog on posts of Sandy before his disappearance).

As to that slice of pizza, my preference would be pizza puttanesca.

# posted by

Shag from Brookline : 1:40 PM

Our yodeler on Cain:

"Cain also has plans for replacing, not just repealing, Obamacare with market based health care. "

Would that "market based health care" be the pure libertarian, unregulated kind?

I would hold the mayo on Cain if this is the case.

As for Cain's "999 tax plan," that's clearly odd.

# posted by

Shag from Brookline : 1:47 PM

The Tea Party does not have a problem with the People amending the Constitution to better limit government and protect our freedoms. Indeed, there is an active consideration among Tea Party supporters concerning a variety of amendments to achieve just that goal.

The Tea Party (and most other folks who believe in constitutional government) do have a serious problem with governments who ignore constitutional limits to infringe upon our freedoms and the Courts who amend the Constitution under the guise of "interpretation" to achieve a "living Constitution" without the leave of the People.

# posted by

Bart DePalma : 3:08 PM

Also, where does Gans want us to have 'unquestioning loyalty' to the Constitution?

The Whole Constitution Pledge starts from the position that people shouldn't cherry-pick the parts they like or don't like, hence the concept of "whole" being opposed to "part."

If one takes that to extremes, and this is where one can debate the nuance within the pledge perhaps, the idea of whole promotes an all or nothing attitude. In short, if one must be reverent to the Constitution, one must be reverent to all of it. Again, as a rhetorical device to shut down the blubbering of a right-wing that thinks the Constitution isn't honored, it makes sense as a political ploy.

As an approach towards the Constitution, it lacks something. The conflict between "amendments are good for the Nation" and "we shouldn't change the Constitution" should be readily apparent. If there's nuance to this argument, it's not coming from the text of the pledge itself.

# posted by

PMS_CC : 4:18 AM

It might be helpful, since it's short, just to quote the thing:

Through the Constitution, “We the People” created the most enduring government charter in world history.

Building on the achievements of the Founding generation, successive generations of Americans have created a “more perfect union” through constitutional Amendments. These Amendments have improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote, and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.

Some have advocated repeal of Amendments, including the 14th Amendment, the 16th Amendment, and the 17th Amendment, that make our Constitution better and this country great. Some have even failed to heed the lessons of the Civil War and the Civil Rights Movement and have advocated a return to ideas of secession and nullification.

I believe that our Constitution has been improved by the Amendments adopted over the last 220 years.

I pledge to support the whole Constitution.

If amendments have improved the Constitution, it would seem to follow that some sort of amendment (e.g., letting Arnold run for President) could be in a good thing. After all, Art. V. is part of the Constitution too.

The word "reverent" is your own gloss and it has a sacred implication that "support" does not. It is misleading, I think.

A pledge that "supports" document repeatedly amended (it's right there in the pledge; since amendment is left open by its very text, amendment in a certain way "supports" it too) is a more practical document.

I remain unclear where there is some "unquestioning loyalty" required by the pledge. You don't even have to agree with all the amendments to think -- as a whole -- they "improved" things.

"Support" in this context is pretty open-ended and as shown by those who have to swear/affirm to "support" the document, strong criticism of various parts of it does not violate it.

The minimum would be not to violate the provisions you don't like. Honest mistaken views on what such and such provision means isn't the same thing as not supporting them.

# posted by

Joe : 9:19 AM

Building on the achievements of the Founding generation, successive generations of Americans have created a “more perfect union” through constitutional Amendments. These Amendments have improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote, and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.

What "amendments" ensured that "the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights?"

# posted by

Bart DePalma : 9:37 AM

"protect the nation, address national challenges and secure civil rights"

There are many post Civil War amendments that specifically give Congress "power" to do things. The 13A, for instance, gave it enforcement power to address slavery and involuntary servitude.

This furthered civil rights, the national challenge of the lingering effects of slavery and protected the nation's principles of equal justice for all.

One can go down the list. The 14A, for some, clearly gives Congress the "power" to protect gun owners in certain ways or the unborn. This deals with civil rights and national challenges / protects nation (guns are necessary for a free state). Others think the 14A protect other civil rights and national challenges.

There are amendments given Congress the power to protect voting rights, more power to tax to deal with various things, address presidential infirmities (quite important potentially to protect the nation), moved up the beginning of the new term to better address modern transportation realities and (perhaps) by implication help states regulate liquor.

I realize some don't like the 16A (not that federal income taxes will go away w/o it -- there were some upheld before its passage) or 17A (states would just do the same on their own, as they started to do) but the question is curious.

# posted by

Joe : 10:04 AM

Joe:

I have no earthly idea which amendments the "constitutional progressives" claim "protect the nation."

"Constitutional progressives" address national challenges by using court decisions to rewrite the Commerce Clause, Tax Clause and N&P Clause, rather than by an actual amendment.

I presume the "constitutional progressives" would start with the Civil War amendments to secure civil rights from government action, but there are no amendments which support their civil rights laws applied to individuals.

Thus, my above query to the "constitutional progressives" stands.

# posted by

Bart DePalma : 10:38 AM

I don't agree that the provisions listed were "rewritten" by the civil rights legislation of the 1960s, which in various ways (including voting rights aided by congressional power pursuant to the 15A etc.) protected "individuals." etc.

Progressives (and others) also used "amendments" to protect people against the poll tax, expand voting rights in various ways up to the 26A and used the amendment process in ways some oppose (such as the 16A).

I listed quite a few things progressives and others think the amendment process gave Congress the power to do per that quote. Your query answered, I will leave the way to others.

# posted by

Joe : 12:02 PM

"Support" in this context is pretty open-ended and as shown by those who have to swear/affirm to "support" the document, strong criticism of various parts of it does not violate it.

The minimum would be not to violate the provisions you don't like. Honest mistaken views on what such and such provision means isn't the same thing as not supporting them.

Of course I agree with you, Joe, but I still have a problem with the construction of the pledge. One can't spend a large portion of a pledge warning against the dangers of repealing amendments without endangering the idea of change that is built into the Constitution itself. At worst, it places a call for maintaining the integrity of the document over an attempt to actually address the issues that concern the people who have those mistaken views. At best, it's a lousy pledge that chides a group of people for having the desire to follow the very process that the beginning of the pledge celebrates.

If "support" is to be understood in terms that allow dissent and intention to alter the text through amendment, you're right to question my choice of "reverent." However, if that's the meaning of the term, I'm not seeing much distinction between those who would take this pledge and those who would repeal the listed amendments. Rather, it seems like the pledge is meant to defend those listed amendments against alteration, and combining that rhetoric with the concept of wholeness (it's in the name, so it can't be brushed off as incidental or excused by historical actions of those who signed on) encourages the reader to come to the conclusion that the whole document is off-limits now.

If the pledge specified that the opponents intended to violate the Constitution, that would be one thing. Singling them out for wanting to amend it doesn't make sense if "support" is to include future amendments.

# posted by

PMS_CC : 12:17 PM

Joe:

The Supremes rewrote the Interstate Commerce Clause to reach intrastate business in order to invent a congressional power to enact the Civil Rights Act as applied to individuals. See the Heart of Atlanta Motel and especially the Ollie's BBQ cases.

# posted by

Bart DePalma : 12:27 PM

Ok, I understand the references to the 16th and 17th amendments; There's considerable sentiment on the right that they were, in retrospect, mistakes. The 14th? I don't believe anybody is proposing to repeal that. The closest thing I can think of is a proposal to *amend* the 14th, to specify that you don't get citizenship by virtue of being born here, if your parents weren't here legally at the time. Such an amendment would certainly leave most of the 14th intact, as so can hardly be characterized as "repealing" it.

# posted by

Brett : 12:50 PM

Of course the whole Constitution includes the Amendments, the Commerce Clause, the Establishment Clause; all sorts of things the teabaggers don't like.

Then of course there are the things that embarrass worshippers of the original document, such as three fifths of a man, and so on. Why, that never happened!

That's why the baggers are hot to make "whole Constitution" mean what they think it means. The same as they want to make the document say what they think it says. Let us all vote on reality, and listen only to those who voted the same we we did, and so on and so forth.

Michelle Bachmann stood on her hind feet and said "Where in the Constitution does it say that?" Although a funny moment, it was also sad; she genuinely believed that the right wing nonsense was true. Must be true; why, she'd heard it hundreds and hundreds of times, and always from people like herself! How in heaven's name could anything that validated be anything but true?

# posted by

jpk : 12:59 PM

PMS, as the original post noted, the other side claims to "love the Constitution," and as you see BP keeps on claiming his opponents in effect made **** up.

So, the pledge takes them at their word. Support the whole Constitution. This doesn't mean treating it as a sacred object. Thus, my disagreement with the word you used.

It doesn't mean it can't be amended. But, it is the TP side that repeatedly says they "love" it while the other sides does not.

And, surely, the pledge expresses basic support of the amendments. The TP side "loves the Constitution," so that implies they do too. Honestly, they want to change it in various ways. This calls them on it.

If there is ground for joining of hands, that too would be good. The average person, e.g., isn't actually making **** up contra (I'm aware and disagree with your analysis of those cases BP) the more strident on both sides.

Everyone can voice basic support of the Constitution while honestly saying they are less enthused about some parts & if given a chance, would even amend a few things. This "I love, you just make stuff up" b.s. can end.

Differences can be addressed on the merits.

# posted by

Joe : 1:17 PM

I don't think many people actually want to be denied the right to choose senators.

The 16A doesn't give Congress the power to lay income taxes. They did that already. It makes it somewhat easier to do it. Taxes on corporations and occupations already were upheld.

Some want to deny rights to people born here as well as non-citizens who reside here. The 14A in various places protects "persons." The latter would repeal that. Birthright citizenship is a core part of the 14A too.

Various people want the states to have more power over areas like religion or speech or guns or abortion or whatever that the 14A denies by protecting individual rights against both state and federal power. Repeal.

There is a push for a "repeal" amendment that would give a majority of the states that power to veto federal legislation. This would apply to stuff pass pursuant to congressional power given by those amendments, which took certain power away from the states. This would give some of it back. Repeal.

I reckon if some on the right elected a President they liked, they wouldn't mind a chance to elect him or her a third time.

# posted by

Joe : 1:27 PM

jpk:

Michelle Bachmann stood on her hind feet and said "Where in the Constitution does it say that?" Although a funny moment, it was also sad...

What is sad is that you think it is somehow funny when a candidate for president actually applies the Constitution as written.

# posted by

Bart DePalma : 3:53 PM

Can our yodeler imagine Michelle Bachmann saying:

"The Constitution refers to land and naval forces, to an army and a navy. But where in the Constitution does it say 'Air Force'?"

Like the Boy Scouts' three finger salute, sometimes we must read between the lines when interpreting/construing the Constitution.

# posted by

Shag from Brookline : 4:38 PM

Shag:

The courts did not rewrite the Constitution to create the Air Force.

Art. I, Sec 8 expressly empowers Congress to "raise and support Armies." The provision does not limit such support to weapons systems or types of units in existence at the time the Constitution was ratified. With the invention of aircraft, Congress created the Army Air Corps and eventually the Air Force to support our armies.

The criticism of the progressive approach to law is not that they apply the law as written to new developments in society, but rather that they rewrite the law to achieve the new developments in society they desire.

# posted by

Bart DePalma : 7:24 PM

"No no NOOO! Where in the Constitution does it say Air Force?

"Where in the CONSTITUTION???"

Ah, the amazing shifting standard.

# posted by

jpk : 8:16 PM

And how simple would it have been in crafting the 14th Amendment to include a specific provision incorporating the first through eighth Amendments? Consider how long it took and the circumstances whereunder some - but not all - of those eight Amendments were incorporated by the Supreme Court. Do textualists read between the lines and still call themselves textualists? Picture three fingers!

# posted by

Shag from Brookline : 8:55 PM

"Various people want the states to have more power over areas like religion or speech or guns or abortion or whatever that the 14A denies by protecting individual rights against both state and federal power. Repeal."

The problem being, a lot of those "various people" are 'progressives', as you can see from the reaction to Citizens United. Censorship has been more of a 'liberal' cause than conservative for some years now, especially when you're talking political censorship. You can see it in the campaign 'reform' movement, you can see it on college campuses. Where the left has the chance, it censors political speech.

Likewise, gun control is more of a liberal than conservative cause, and has been for some time.

I know of no proposal on the right to repeal the 14th amendment. (Unlike the 16th or 17th.) Can you point to one?

# posted by

Brett : 6:41 AM

Brett's reference in his recent post to Citizens United is a reminder:

"Where in the Constitution does it say that corporations are people?"

Can we expect Michelle Bachmann to ask this?

Regarding repeal of the 14th Amendment, I don't think any group would openly push for this in the current environment. But prospective demographic changes might come into play as today's majority might be a tad concerned with becoming a minority (remembering how the current majority treated the minority and not wishing to be subjected to similar treatment). There may be some interest in modifying certain aspects of the 14th Amendment but Article V presents a significant obstacle, whether via action by Congress or via a Convention.

# posted by

Shag from Brookline : 7:51 AM

Brett, there are many people on the right that want to read out gays from the equal protection clause, deny abortion rights which are protected by the 14A, censor other types of speech including pornography, deny citizens and "persons" (resident aliens) various rights, etc.

The result would be to repeal chunks of the 14A. I realize that as with those that disagree with you on CU, they might think the 14A actually allows such things. But, supporters of a "Human Life Amendment" or an amendment to block same sex marriages suggest some think amendments are necessary.

Meanwhile, John McCain (not alone), not really a progressive, disagrees with you on campaign finance reform and since you think Heller is a lacking, apparently many on the right aren't strong enough on guns either.

# posted by

Joe : 8:04 AM

Adding to the things listed (the last President supported the anti-SSM amendment, the other proposal around for decades), I also added the Repeal Amendment:

"The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation."

http://www.cato.org/pub_display.php?pub_id=12144

The proposals don't "repeal the 14A" and this doesn't either. They water it down and repeal aspects of it, since repealing equal protection etc. as a whole would be a pretty hard sell.

This one would water down Congress' power over various subjects addressed by the amendments. The states would have an additional veto power, when the very point of the amendments was to give the Congress (or the federal government as a whole) the authority to do certain things.

# posted by

Joe : 8:13 AM

Shag from Brookline said...

And how simple would it have been in crafting the 14th Amendment to include a specific provision incorporating the first through eighth Amendments? Consider how long it took and the circumstances whereunder some - but not all - of those eight Amendments were incorporated by the Supreme Court. Do textualists read between the lines and still call themselves textualists? Picture three fingers!

Our natural rights are not limited to those enumerated in the first eight amendments, thus the 9th and 10th Amendments. The P/I Clause was intended to guarantee all natural rights until written out of the Constitution by the Courts.

# posted by

Bart DePalma : 11:09 AM

Our yodeler's focus on "natural rights" vis-a-vis the 14th Amendment calls for the Michelle Bachmann question:

"Where in the 14th Amendment of the Constitution are 'natural rights' referenced?"

Of course, what constitutes the realm of "natural rights" needs some definition. How would originalism handle this? May some "natural rights" develop AFTER ascertaining the public meaning/understanding approach of originalism determined as of the time of framing/ratifying?

Our yodeler claims:

"The P/I Clause was intended to guarantee all natural rights until written out of the Constitution by the Courts."

Is this claim based upon the "original intent" original basis of originalism that has been basically discredited or mostly discarded? Or is this claim based upon some subsequent approaches of originalism, e.g. public meaning/understanding back at the relevant times of the Constitution, Bill of Rights, Civil War Amendments framing/ratifying?

Can a textualist find "natural rights" in the Constitution as amended without reading between the lines? (Another three-finger salute to our yodeler.)

# posted by

Shag from Brookline : 12:02 PM

Shag:

Natural rights are those whose existence preceded and which may not be abridged by government.

Privileges and immunities was a term of art for natural rights.

Defining unenumerated natural rights is of course a challenge for original meaning textualists.

I tend to favor Randy Barnett's proposed "presumption of liberty" test:

As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be "immune" from interference by government.32 Such a presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both "necessary and proper" to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its "police power"—that is, the state's power to protect the rights of its citizens.

# posted by

Bart DePalma : 12:22 PM

Our yodeler's response on "natural rights" fails to point to an answer to the Michelle Bachmann-type question "Where in the Constitution, etc, .... " This portion of his response:

"Privileges and immunities was a term of art for natural rights."

calls for a responsible cite. But our yodeler suggests with that part of his response and his earlier:

"Natural rights are those whose existence preceded and which may not be abridged by government."

that what constitute "natural rights" existed and were identified preceding "government" (presumably the framing/ratifying of the Constitution, Bill of Rights and other Amendments?). (Maybe they preceded the Garden of Eden's "Original Sin.")

But our yodeler as a confirmed textualist concedes:

"Defining unenumerated natural rights is of course a challenge for original meaning textualists."

So instead, he sets forth Randy Barnett's "proposed 'presumption of liberty' test." But "liberty" is referenced in a few places in the Constitution as amended, whereas "natural rights" are not. As to unenumerated rights referenced in the Constitution as amended, there is nothing in the Constitution identifying or defining them.

So our yodeler has come full circle without closing it on the Michelle Bachmann-type question "Where in the Constitution ....." Perhaps this constitutional game could compete with "Where's Waldo?"

# posted by

Shag from Brookline : 2:36 PM

Was Randy Barnett one of the Founding Fathers?

# posted by

Bartbuster : 4:32 PM

BB:

No. He has been trying to restore the "lost Constitution.." Unlike our yodeler, he admits to reading between the lines of the Constitution. Like Brett, Barnett suffers from chronic "Wick-burn" and questions Justice Scalia's originalist credentials since Scalia snuffed out his CA Ganjah case (aka "Raich-burn") claim that the Commerce Clause ("among the states") did not apply to home-grown stash in CA.

# posted by

Shag from Brookline : 4:52 PM

Shag, in respect to Citizens United, this was less about what corporations could do, than about what Congress couldn't do: Censor. The administration gave the game away when they asserted before the Court the authority to ban books. And once they'd acknowledged the implications of their position, what was the Court to do? Say that book banning was ok, as long as the book was published by a corporation? Read any lately that weren't?

Through a variety of means, the government itself has herded the exercise of certain liberties into the corporate form. It is no accident that essentially all newspapers are published by corporations. The law makes it perilous, directly illegal in many cases, to cooperate in doing certain things people have a right to do, without forming a corporation. How, then, can the very government which drives people to form corporations use those corporations as an excuse to violate those liberties?

Joe, the right doesn't want to deny abortion rights "which are" protected by the 14th, they deny "that" abortion rights are protected by it. Quite rightly, from an originalist standpoint, whatever you think the policy merits of permitting abortion. Heck, you'd probably be on better grounds using the 14th to ban abortion, on the basis that the unborn were "people". It's certainly not an amendment congenial to the notion that some lives are more equal than others.

Further, the repeal amendment wouldn't water down the 14th, unless you think two thirds of the states are going to try to bring back Jim Crow. The repeal amendment does not, after all, give individual states any power.

Why, I might with equal justice say that liberals want to repeal the 14th amendment, because they reject equal treatment under the law in favor of affirmative action.

My point here is that the pledge asserts a false loyalty to the Constitution on the part of 'progressives', who are quite capable of taking exception to parts of the Constitution. They just express that opposition in rather less open ways, a tactical choice given the unpopular nature of many of the constitutional changes they desire.

It's nothing but a rhetorical trap spun for conservatives, who are assumed to be too stupid not to figure it out. Rather like declaring that it's "judicial activism" for the judiciary to enforce parts of the Constitution conservatives like rather more than liberals.

# posted by

Brett : 2:13 AM

So it seems that Brett evades directly answering the Michelle Bachmann-type question posed:

"Where in the Constitution does it say that corporations are people?"

Rather, Brett defends the 5-4 Citizens United based upon a government response during oral argument to an issue that was not specifically before the Court. Is Brett so naive as to believe that that response was the clincher for the 5-side?

As to the second paragraph of Brett's recent comment, he provides no cites. Was the impetus for the corporate form mandated by the federal government? Or was the corporate form a benefit to certain types of businesses, including limiting liability? (Think of railroads, canals, and other big projects that needed investors.) Do people have such limited liability? (Please, don't counter with the LLC.) While the corporate form was known of at the time of the framing/ratifying, it was not specifically provided for in the Constitution; rather, it was provided for by an activist conservative Court in the 19th century (post-Civil War Amendments) and updated by the current conservative Court. While corporations continue with limited liability, now they are unlimited on certain political spending.

But let's not get too far astray from this aspect of this thread, which has been based upon our yodeler being critical of a comment critical of Michelle Bachmann who had raised the "Where in the Constitution does it say [fill in the blank]?" Citizens United, despite being 5-4, is the law of the land. Consider now the NYTimes front page article Monday, 9/26/11, "A Campaign Finance Ruling Turned to Labor's Advantage" by Steven Greenhouse. So the current Court has opened the door wide for more expensive and perhaps longer political campaigns. Perhaps Brett believes that that's what the framers/ratifiers intended. If so, he's reading between the lines. So a three-finger salute to Brett.

In Brett's comment in response to Joe, he states:

"Why, I might with equal justice say that liberals want to repeal the 14th amendment, because they reject equal treatment under the law in favor of affirmative action."

On this issue, I recommend Ian Haney Lopez's article "Intentional Blindness: The Entwined Origins of Colorblindness and Discriminatory Intent" available via SSRN at:

http://ssrn.com/abstract=1920418

Otherwise, I leave to Joe a response, if he chooses to do so.

# posted by

Shag from Brookline : 6:18 AM

Shag, while corporations aren't persons, they most assuredly are people. (Kind of like Soylent Green...) In the same sense that the chair I'm sitting on isn't an atom, but it IS atoms. And has all the properties of atoms, and some emergent properties as well.

When the Constitution says that Congress shall make no law abridging freedom of speech, or of the press, where does it say, "Unless the people whose speech is to be abridged happen to have gotten together in a corporation"? Nowhere.

That is why to put the focus on what corporations may do, as opposed to what congress may not do, is a mistake.

Or, rather, a ploy, on the part of those who want to censor political discourse, while pretending all the while to be in favor of free speech. Just so long as people don't get together to speak it loud enough to be heard...

No, I don't suppose the administration's assertion that they had the authority to ban books was the clincher. Nobody who cared about freedom of speech needed such a clincher, nobody who didn't care for it was offended by that claim of power. I do suppose that it stiffened some spines, though.

# posted by

Brett : 6:55 AM

the discussion, while quite interesting on the whole, serves simply to re-emphasize what we all already knew. all sides of the argument, progressive, libertarian, liberal or conservative, are more than willing to bend the words of the constitution to fit their individual political beliefs (as in "...where does it say, "Unless the people whose speech is to be abridged happen to have gotten together in a corporation"? Nowhere." or... the entire thread regarding the michelle bachmann question).

i find it interesting that conservatives like to say that this should, for the most part, be left up to the states, and then turn around and trumpet supremacy clauses to limit the right of people to sue for damages in those very state courts, claiming that federal law should supercede.

i also find it interesting that nobody ever cites the ninth amendment which specifically grants further rights not otherwise enumerated within the constitution to the people. it seems to me that if you are looking for a right of an individual to obtain an abortion, for example, that it is clearly within the ninth amendment. i would note that the argument i got from the other side on this the last time i brought up the ninth amendment (although not in the context of the abortion debate), was something along the lines of "don't wave the ninth amendment at me..."

# posted by

phg : 7:52 AM

Brett picks up support from the now deceased former spokesperson for the NRA, Charlton Heston, with this:

"Shag, while corporations aren't persons, they most assuredly are people. (Kind of like Soylent Green...) In the same sense that the chair I'm sitting on isn't an atom, but it IS atoms. And has all the properties of atoms, and some emergent properties as well."

I haven't checked dictionaries of the times of the framer/ratifiers, but it seems to be a definitional contradiction that Brett sets forth in that first sentence. In Brett's second and third sentences (following the parenthetical that is attributed to Heston in comedic routines), he seems to suggest that not a single atom but a bunch of atoms, such as his chair, may be people for purposes of the Constitution. (If I were serving as Chair of a meeting, I would table such a suggestion.)

So Brett continues to duck the posed question by responding with his own question. To remind Brett yet once again, this aspect of the thread is not focused upon the wisdom of the 5-4 Citizens United decision but on the posed question. What Brett is doing is reading between the lines, which has been the history of the interpretation/construction of the Constitution for over 200 years. (Does this mean that Brett may be resolving his chronic suffering of "Wick-burn"?)

As to caring about freedom of speech, the current Court has yet to declare that all limitations on political contributions and the use thereof are unconstitutional. Perhaps that is the goal of the Roberts Court. But that's a different discussion from
"Where in the Constitution does it say that [fill in the blank]?" a la Michelle Bachmann.

# posted by

Shag from Brookline : 8:39 AM

Brett, I already noted that both sides repeatedly argue what the other side thinks as a violation or "repeal" is the "right" meaning of the Constitution.

So, disputing the 14A protects abortion rights (and the "originalist" arguments found in Balkin's writings and "What Roe Should Have Said" book on both 13 and 14A grounds are wrong) doesn't tell me much in that department.

So, there will be some dispute over what is or is not a "repeal." phq -- people do cite the 9A. It was the basis of the lower court in Roe v. Wade. It isn't used as much legally since the courts have used other methods to protect the same basic principle.

As to the Repeal Amendment, "Jim Crow" is not the only way to water down what the amendments give to the federal government to regulate. Since I said few are trying to repeal everything, again, that doesn't add much.

I already noted that criticism or not agreeing what one thinks such and such provision means is not "false loyalty" -- at most the people are wrong. Attacking good intentions is not too useful. Debate the merits.

Again, I listed several areas, some where constitutional amendments were proposed, where important parts of the 14A et. al. (you yourself cited two amendments; how many do we need before the repeal effort matters?) are targeted.

As to affirmative action, I found this collection of essays by Prof. Levinson (and family) interesting:

http://www.utexas.edu/law/faculty/slevinson/wrestlingwithdiversity/

I read the "Gem" referenced in the original post some time back. It too is interesting. As is Randy Barnett, though I think Daniel Farber in his book on the 9A has a point to focus on "rights" over "liberty."

# posted by

Joe : 9:16 AM

Randy Barnett wrote an interesting supportive article on Lawrence v. Texas (who dissented there again?) in the 2002-3 Cato Supreme Court volume. It might be online. The new Cato volume is due soon. It's an interesting series.

# posted by

Joe : 9:20 AM

Perhaps focusing on "responsibilities" as well could balance "rights" in providing "happiness" and "liberty."

# posted by

Shag from Brookline : 9:36 AM

phg:

There is definitely plenty of hypocrisy to go around concerning the selective application of the Constitution.

Justice Ginsberg argued previously that the pro-abortion advocates should have argued that abortion was an unenumerated right under the Ninth Amendment rather than making up the right out of penumbras. The problem with that idea is that abortion is not a well established right and would even fail Barnett's presumption of liberty test because abortion is the killing of another human being.

# posted by

Bart DePalma : 11:02 AM

Actually, Bart, abortion rights easily pass any natural rights / unenumerated rights test. Self-defense is one of the standard "natural" rights that those sorts of people assert, and abortion is basically an obvious form of self-defense against an unwanted invader. (And no, the fact that the woman may have had consensual sex to conceive the fetus doesn't make the fetus any less of an unwanted invader, any more than you do not have the right to shoot a burglar if you left your front door unlocked.)

Similarly, bodily integrity is one of the key "natural" rights as well.

There's also a sex discrimination / equal protection argument Ginsburg endorsed, but it wasn't a natural rights theory.

The problem with abortion rights is NOT that they aren't natural unenumerated rights. They are basically a slam dunk on those grounds-- it doesn't matter what rights a fetus has, it doesn't have the right to invade a woman's womb and take over her body. Indeed, Roe and Casey make very good natural rights cases in favor of abortion rights.

(Of course, there is a natural rights case against Roe, but it is a sexist, bigoted, superstitious case based on nonsense about the fetus having a soul and women's bodies and equal rights having no value. The Constitution does not adopt THAT natural rights philosophy.)

The problem with abortion rights is positivist. If you believe the Ninth Amendment and the Due Process Clause DO NOT protect unenumerated substantive rights, then it's very hard to find an abortion right in the Constitution. (The equal protection clause is the best candidate.) Which is why most of the more persuasive critics of Roe have been positivists.

# posted by

Dilan : 1:18 PM

Now our yodeler states, apparently as fact:

" ... because abortion is the killing of another human being."

Does he determine this from a medical, biology, other scientific measure or from something specified in the Constitution as amended, the latter raising another Michelle Bachmann-type question:

"Where in the Constitution does it say that a pre-fetus pregnancy or a fetus at any stage is a person, i.e., a human being?

Our yodeler is back to shooting blanks, even disavowing Barnett's "liberty" test apparently to avoid addressing the liberty and well-being of the pregnant woman medically or otherwise.

# posted by

Shag from Brookline : 1:24 PM

Dilan:

Intercourse only has one biological purpose - reproduction. When a woman voluntarily engages in intercourse, she (and the man) are agreeing to reproduce. The failure or absence of contraception does not change that fact.

Your only viable self defense argument for abortion is in the case of rape or other involuntary intercourse, an argument with which I happen to share.

# posted by

Bart DePalma : 1:54 PM

Shag from Brookline said...

Now our yodeler states, apparently as fact: " ... because abortion is the killing of another human being."

Does he determine this from a medical, biology, other scientific measure...

It is an undisputed scientific fact that we are all human beings - living humans - from the point of conception. Even most proponents of abortion do not disagree with this fact. Their argument is that some human beings are legal persons with a right to life and others can be killed at the discretion of the mother.

# posted by

Bart DePalma : 1:58 PM

It is an undisputed scientific fact that we are all human beings - living humans - from the point of conception.
# posted by Bart DePalma : 1:58 PM

Actually, it appears that this particular "fact" is not nearly as undisputed as you seem to think it is.

# posted by

Bartbuster : 2:34 PM

Intercourse only has one biological purpose - reproduction. When a woman voluntarily engages in intercourse, she (and the man) are agreeing to reproduce. The failure or absence of contraception does not change that fact.

# posted by Bart DePalma : 1:54 PM

Once again, this appears to be a "fact" that not everyone agrees to. That seems to happen a lot with your "facts".

# posted by

Bartbuster : 2:41 PM

Our yodeler asserts:

"The failure or absence of contraception does not change that fact [Intercourse only has one biological purpose - reproduction]."

What if both, or one, of the male/female voluntary couplers is/are barren, including by surgical procedure or age and no contraceptives are used? Would that, based upon yodeler's experience, not constitute intercourse?

While our yodeler provides an exception for rape re: abortion, he provides no exception regarding the health of the mother, including death. Nor does he provide an exception for voluntary intercourse by a woman with a person other than her barren husband.

Also, our yodeler ducks responding to the posed Michelle Bachmann-type question.

By the Bybee [expletives deleted], is it a sin for a barren male to have sexual intercourse with a fertile woman?

# posted by

Shag from Brookline : 3:34 PM

It is a CRIME against GOD and NATURE!

# posted by

jpk : 3:46 PM

"Actually, Bart, abortion rights easily pass any natural rights / unenumerated rights test. Self-defense is one of the standard "natural" rights that those sorts of people assert, and abortion is basically an obvious form of self-defense against an unwanted invader. (And no, the fact that the woman may have had consensual sex to conceive the fetus doesn't make the fetus any less of an unwanted invader, any more than you do not have the right to shoot a burglar if you left your front door unlocked.)"

I also oppose banning abortion, but regarding the product of a natural bodily function that the woman is directly responsible for initiating (however unintentionally) as an invader is utterly ridiculous. It's like saying that I have a natural right to shoot a trespasser on my land when the reason he was on my land in the first place is because I accidentally spilled a drink on his map earlier making it look like my land was public land. Or a natural right to shoot someone entering my apartment if my last name was Daundry and I happened to have forgotten to finish painting the letter D of my name on my door so it looked like it was the apartment laundry room. And in both cases I knew I had actively caused, however unintentionally, the invader to come in, not just failed to prevent them from coming in. And yes, sex is the cause of pregnancy. A cop wearing a bullet-proof vest who gets shot and dies should still be said to have died from being shot, not just from having a faulty vest.

# posted by

Isaac : 8:27 PM

The accidental trespasser can leave upon request. If s/he stays and latches on to your body to get nutrition, yes, you can use force. The trespasser don't have some right to stay for a year on your dime (or avoid force to get him/her to leave when warnings are ignored) because your own negligence got them there.

It is a 'natural right' to protect your body against some unwanted invasion in this fashion. The fact a natural bodily function involved doesn't change anything; it is particularly unclear that "consent" is present when protected sex rarely leads to pregnancy.

If sex leads to getting a parasite, is there no "natural right" to avoid the result, even if the parasite turns out to be some intelligent life form? Does leaving the door open mean you can't shoot the burglar, since you "invited" him in?

# posted by

Joe : 10:20 PM

Joe:

A child is not an invading parasite. The analogy is both inaccurate and obscene.

Parents create their children from their own genetic codes and those children are the future of the race.

Pro-abortionists who kill off their own children deserve to have their genetic lines and societies die off as is occurring today in the EU and China, and to a lesser extent in secular America.

# posted by

Bart DePalma : 10:37 PM

"The accidental trespasser can leave upon request. If s/he stays and latches on to your body to get nutrition, yes, you can use force."

If a mistake by the French government created a situation where a guy was trapped in Charles De Gaulle airport with no country willing to take him (something similar really happened), it would bloody well not be national self-defense to kill him just because he can't leave.

"it is particularly unclear that "consent" is present when protected sex rarely leads to pregnancy."

If I'm making kevlar vests and ask someone to shoot me to show off my vest, do I have a right to treat that person as an attacker because I got really unlucky and the vest failed? Of course not.

"If sex leads to getting a parasite, is there no "natural right" to avoid the result, even if the parasite turns out to be some intelligent life form?"

One's own offspring aren't a parasite, even if (as I believe) they aren't persons yet in any non-religious sense. That's an utterly twisted view.

"Does leaving the door open mean you can't shoot the burglar, since you "invited" him in?"

You talk like sex merely leaves the door open to the stork dropping an embryo in when it feels like it. This should be obvious, but sex CAUSES pregnancy.

Your absurd self-defense argument also leaves out the woman who intentionally gets pregnant, has her husband leave her for her secretary, and decides to have an abortion. Does self-defense now extend to killing someone who can't leave after deliberately inviting them into the home for a set period?

# posted by

Isaac : 11:14 PM

I said "if" -- I was working off the premises set up regarding trespassers, not just pregnancy. An unwanted pregnancy is quite oppressive to a girl or women in various cases.

Many religions think abortion is moral in various instances. America is a quite religious country.

Contraception inhibit the creation of new genetic lines too. Lower birth rates, including by contraceptive methods, is practiced both in hunter/gatherer and post-industrial societies.

Moving on.

# posted by

Joe : 11:15 PM

"If a mistake by the French government created a situation where a guy was trapped in Charles De Gaulle airport"

Sorry no. Not some airport. Attached to my vein. I don't think they won't be able to find some place to put him for nine mos either. And, that isn't even my private home.

"If I'm making kevlar vests and ask someone to shoot me to show off my vest, do I have a right to treat that person as an attacker because I got really unlucky and the vest failed? Of course not."

Again, poor analogy. The issue was consent to pregnancy, not saying the guy who made your pregnant is an "attacker" for putting you in harm's way (the analogy here).

"One's own offspring aren't a parasite, even if (as I believe) they aren't persons yet in any non-religious sense. That's an utterly twisted view."

Your argument isn't made better by calling mine names. I didn't say the embryo was a "parasite."

I was showing that consent to sex would not necessarily lead you to be obligated to carry some life form to term, one that latched on to you for subsistence.

This is what a 'parasite' is, even if as I said Star Trek-like, it's an intelligent one. It might upset you I used the term, but that is what a "parasite" is.

"You talk like sex merely leaves the door open to the stork dropping an embryo in when it feels like it. This should be obvious, but sex CAUSES pregnancy."

Many things we do might "cause" something. Again, that doesn't mean we consent to something that might happen (contraceptives can be 99% effective) and can't stop the result that harms our body.

This "should be obvious."

"Your absurd self-defense argument"

be fair. It's really Dilan's.

"also leaves out the woman who intentionally gets pregnant, has her husband leave her for her secretary, and decides to have an abortion"

Sure, the usual case. Seriously, various decisions we make to protect our health are subject to various things. A player might play thru pain to finish a game. He isn't required to do so. If the game is 35-0, he might not. He has the right to choose.

"Does self-defense now extend to killing someone who can't leave after deliberately inviting them into the home for a set period?"

The two situations are not really the same. "Someone" implies a person, while an embryo/fetus is not legally a person. Once a fetus can survive outside the womb, yes, the woman does have a much more restricted ability to abort.

But, even then, if an abortion is necessary to protect her life, the fact she at first decided to risk it and changes her mind doesn't mean her right to abort was negated. Pre-viability, since a "someone" (person) isn't involved, yes, the woman can decide not to allow the pregnancy to go on.

Comparably, if a pitcher starts a game, the fact he started the game doesn't mean he can be forced to finish it by force. That would be involuntary servitude.

# posted by

Joe : 11:37 PM

"Sorry no. Not some airport. Attached to my vein. I don't think they won't be able to find some place to put him for nine mos either. And, that isn't even my private home."

But the national right to self defense, including the ability to use force to get rid of illegal aliens (which the US does all the time in deportations), is a macrocosm of what we're talking about.

"Again, poor analogy. The issue was consent to pregnancy, not saying the guy who made your pregnant is an "attacker" for putting you in harm's way (the analogy here)."

The analogy veered a little bit, but it is relevant: in both cases the person willfully engaged in the activity believing the unwanted consequences were very unlikely due to a prophylactic measure taken. You can't say that the woman didn't consent to the possibility of sperm reaching her ova due to her using a latex barrier any more than the man didn't consent the possibility of the bullet entering his chest cavity due to using a kevlar barrier.

"Your argument isn't made better by calling mine names. I didn't say the embryo was a "parasite.""

Did I hurt your argument's feelings? Give it a big hug, an ice cream, and tell it I didn't mean to traumatize it. ;-)

To the point, no you didn't say that, but you implied it. Bart obviously thought so too. I'll accept that you didn't intend to imply it.

"I was showing that consent to sex would not necessarily lead you to be obligated to carry some life form to term, one that latched on to you for subsistence.

This is what a 'parasite' is, even if as I said Star Trek-like, it's an intelligent one. It might upset you I used the term, but that is what a "parasite" is."

Again, we're back to the stork. Sex doesn't just leave the door open to an intelligent parasite slipping through. It creates an embryo. It's supposed to do that.

"Many things we do might "cause" something. Again, that doesn't mean we consent to something that might happen (contraceptives can be 99% effective) and can't stop the result that harms our body."

I never said it did. I just said that it means we can't equate it to an invader whom we have a natural right to self-defense again, akin to a burglar breaking into a house.

"be fair. It's really Dilan's."

Okay, granted.

"Sure, the usual case. Seriously, various decisions we make to protect our health are subject to various things. A player might play thru pain to finish a game. He isn't required to do so. If the game is 35-0, he might not. He has the right to choose."

I simply said that that this argument fails to cover that case, not that the woman in question shouldn't be legally allowed to abort.

"The two situations are not really the same. "Someone" implies a person, while an embryo/fetus is not legally a person. Once a fetus can survive outside the womb, yes, the woman does have a much more restricted ability to abort."

Yes, but this whole line of argument compares the fetus to a legal person (and suggests the right to abort would still be valid even if the law viewed an embryo or fetus the same way it views a newborn). We've been analogizing fetuses to persons throughout this whole self-defense discussion.

"But, even then, if an abortion is necessary to protect her life, the fact she at first decided to risk it and changes her mind doesn't mean her right to abort was negated. Pre-viability, since a "someone" (person) isn't involved, yes, the woman can decide not to allow the pregnancy to go on."

I agree, but again, under the self-defense theory the woman who changes her mind would not have a right to an abortion, unless you interpret self-defense in an incredibly perverse way. That was my point.

# posted by

Isaac : 12:03 AM

Isaac's view of self-defense:

" ... but again, under the self-defense theory the woman who changes her mind would not have a right to an abortion, unless you interpret self-defense in an incredibly perverse way. That was my point."

needs a cite. One may consider deadly self-defense in a situation but have a change of mind for any number of reasons, reasonable or not, and still later conclude that that change of mind was not appropriate and act in self-defense. Self-defense is not limited to one bite of the apple. Consider a woman who has been battered, she considers self-defense, changes her mind because of considerations of her children, but then realizes that her situation will worsen, perhaps become deadly for her, so she utilizes self-defense.

# posted by

Shag from Brookline : 6:35 AM

I think it is ill advised to make this thread about abortion, but I guess it is a common example for the broad principles involved.

National Right To Self-Defense: The differences between an airport/home or airport/vein underlines there are differences in practice. Nations still change when they allow or eject aliens, including if the aliens will suffer if they aren't allowed to stay. If porous borders allowed them in, the lack of a big enough wall around Texas doesn't mean the nation is obligated to keep them, even if it's a nasty world out there.

Vest/Contraceptive failure: The bottom line is the woman still isn't obligated to suffer the consequences even if somewhat liable, just as leaving a door open doesn't mean I can't shoot a burglar in self-defense. In neither case did one "consent" to the consequences. Abortion is legal, like other medical procedures, to take care of one's body from something seen as a threat to well being. Like an operation, it is an act of "self-defense," the woman has a right to have. Even if she "consented" to whatever caused the need to have the operation.

Polite Disagreement: I didn't call an embryo a parasite -- I was making an analogy. It's duly noted BP leaps to conclusions repeatedly. An honest misunderstanding is likely to happen, which underlines (the alternative helped lead someone to cut off comments) polite debate, not calling arguments stupid about five times is a favored policy by some of us around here.

Stork: Sex isn't "supposed" to always create an embryo and it is quite possible in some other situation that there are natural parasites that naturally form from some other act. Sex isn't "supposed" to create an embryo except when a woman is fertile certain times a month and like clothing, humans always had (even "in nature") had ways to artificially control the situation. Naturally, the woman had the right to defend against such natural concerns. And, even then, "suppose" implies morality -- she isn't obligated to have a child. I don't know why it is so much different than a burglar, unless someone thinks God wills women to have children, so unlike a burglar, she is "supposed" to have one each time. Such is not what happened -- women controlled their fertility, including by abortion, for millenia.

Shifting: The football analogy underlines self-defense is retained even if one decides for a time to suffer the consequences. A person can change their mind if new information arises that changes the calculus. I welcome Shag's comment.

Anyway, I'll leave it there.

# posted by

Joe : 9:22 AM

Pro-abortionists who kill off their own children deserve to have their genetic lines and societies die off as is occurring today in the EU and China, and to a lesser extent in secular America.
# posted by Bart DePalma : 10:37 PM

And to an even lesser extent, your household. That always cracks me up.

# posted by

Bartbuster : 10:10 AM

By the way, I'm pretty sure China is not "dying off". The "dying off" in China probably won't start until global warming turns the country into a desert.

# posted by

Bartbuster : 10:15 AM

No it appears their "genetic lines" are "dying off".

Why, it's amateur genetics hour! How fun! And how relevant to the Constitution!

# posted by

jpk : 1:46 PM

Joe:

The purpose of intercourse is reproduction. The fact that intercourse is not always successful in achieving reproduction does not change that base fact. Thus, if you voluntarily engage in intercourse, you are voluntarily engaging in an attempt to reproduce and are thus inviting any child thus conceived.

Even at its most expansive, the court invented the right to abortion as a penumbral variation of the enumerated rights to privacy in the Constitution, not as an exercise to a right to self defense.

bb:

The combination of China's one child policy (less than 1/2 the necessary replacement rate) and the Chinese cultural bias toward making that child male has created a demographic crisis in China. After the boomer generation dies off, the Chinese population will collapse and then the male dominated next generation will again not be able to (even if it wanted to) achieve a replacement rate of reproduction.

Economically, this will be a disaster as there will not be enough workers to maintain the Chinese economy and those remaining workers will be burdened by an elderly population which far outnumbers them.

The EU is mitigating this to some extent by immigration and their high reproduction rate at the sacrifice of their culture. The Chinese consider non-Chinese to be barbarians and are unlikely to accept mass immigration.

# posted by

Bart DePalma : 1:47 PM

The combination of China's one child policy (less than 1/2 the necessary replacement rate) and the Chinese cultural bias toward making that child male has created a demographic crisis in China. After the boomer generation dies off, the Chinese population will collapse and then the male dominated next generation will again not be able to (even if it wanted to) achieve a replacement rate of reproduction.

Economically, this will be a disaster as there will not be enough workers to maintain the Chinese economy and those remaining workers will be burdened by an elderly population which far outnumbers them.

# posted by Bart DePalma : 1:47 PM

Trust me, that is nothing compared to the disaster that will happen when global warming turns all of China into a dessert.

Personally, I'm looking forward to the upcoming collapse of the Bart DePalma lineage.

# posted by

Bartbuster : 2:25 PM

Intercourse only has one biological purpose - reproduction.

Whoa. Mrs. DePalma must be a very unlucky woman.

# posted by

Dilan : 4:38 PM

And yes, the fact that a fetus is a potential human person does not mean that it cannot also be a trepasser and a threat to the woman.

If a trespasser comes to your home and puts a bunch of embryos in your freezer or plugs an incubator into your outlet with a fetus inside, that doesn't impose on you any obligation to nurture the embryo or fetus.

You can't get to Bart's position without the unstated premise that the government has the right to take over the woman's body and hijack it for nine months to prevent the embryo's destruction. And that is a violation of her rights under any natural law conception other than one based on sexist fairy tale religious superstition.

# posted by

Dilan : 4:47 PM

Dilan:

Sexual attraction and pleasure are a biological means to encourage reproduction, not ends in themselves.

# posted by

Bart DePalma : 4:47 PM

Dilan:

If abortion were outlawed tomorrow, the state is not doing a single thing to a mother's body. If the intercourse was voluntary, the mother and father themselves created the condition of pregnancy. Outlawing abortion simply prohibits a mother from killing the child that she conceived.

# posted by

Bart DePalma : 4:51 PM

Outlawing abortion simply prohibits a mother from killing the child that she conceived.
# posted by Bart DePalma : 4:51 PM

It does nothing of the sort. It just makes the process a lot more dangerous.

# posted by

Bartbuster : 4:56 PM

Let's extend our yodeler's hypo:

"If a state were to outlaw vasectomies and/or tube-tying, the state is not doing a thing to the body of men and/or women (except fostering procreation whether desired or not) as a means of assuring procreation instead of pure (impure?) recreation."

This suggests that those who engage in intercourse under conditions that cannot result in conception could be punished.

# posted by

Shag from Brookline : 5:12 PM

It is duly noted that the reason why the elderly have sex is to try to reproduce. Seriously, come on. Sex is for various purposes, including in the animal kingdom, including to form bonds and intimacies.

Griswold's penumbra idea never got legs. Even there, three justices also signed on to a 9A argument that was substantive due process by other means. Roe rested on Harlan/White's liberty rationale.

Casey:

"The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice."

The courts rarely are blunt in their reasoning, but self-defense is clearly a basic concern there. The basic point of "privacy" or "bodily integrity" and other things the cases protect is that some things are personal, not for others w/o a compelling reason, and you can protect those spaces by force if necessary, such as the home or one's body.

# posted by

Joe : 5:48 PM

Joe:

Long term mating relationships are not a product of the act of intercourse, but rather a genetically driven relationship to protect and support the couple and their children.

This stuff is basic evolutionary biology.

Forget morals and religion for a moment and let's talk stark numbers. Abortion is not only wrong on its own account as a form of homicide, we are discovering that societies which practice mass abortion die off. America alone kills off about 1.3 million of its children per year. Without immigration and the children produced by immigrants, our native population would begin to die off with the boomers, albeit at a slower pace than China and the EU.

If this mass in vitro death was caused by disease, we would unite to defend our people against the pandemic. In the name of choice, however, we provide legal protection for the self inflicted slaughter.

Either through the law, social opprobrium or population attrition, abortion has no long term future.

# posted by

Bart DePalma : 6:24 PM

This comment has been removed by the author.

# posted by

PMS_CC : 7:39 PM

I don't want to dive into the deep end here. However, as a person who teaches physical anthropology, I'd just like to point out that any "basic evolutionary biology" that says the only function of sexual intercourse is reproduction is way too "basic" to be the basis for public policy.

# posted by

PMS_CC : 7:39 PM

Our yodeler offers:

"Outlawing abortion simply prohibits a mother from killing the child that she conceived."

without spelling out the terms of the outlawing. It isn't quite that "simple" as there may be constitutional and other issues to be addressed in a statute (or even in a constitutional amendment). Would the mother be the criminal or the person performing the procedure, or both? Would there be an exception for rape or for the health of the mother by going full term? Or is our yodeler thinking that a more conservative Supreme Court would reverse decisions permitting abortion? And consideration would have to be given to the results of making abortion illegal. (Think of Prohibition.) Might wire coat hangers be outlawed or treated as "arms" for self-defense by a pregnant woman of her life/health attributable to her pregnancy under an extension of the Second Amendment? Abortion is too complex a subject for a simple solution such as our yodeler offers.

# posted by

Shag from Brookline : 8:55 PM

I must confess, I found the genetics lecture every bit as good as Schockley's.

# posted by

jpk : 10:21 PM

Bart:

Sexual attraction and pleasure are a biological means to encourage reproduction, not ends in themselves.

This statement makes a couple of huge mistakes. First of all, plenty of species successfully reproduce without experiencing sexual pleasure. So, while sexual pleasure COULD be an adaptation that confers a reproductive advantage, this isn't something anyone is sure of.

Second, even if sexual pleasure is an adaptation that confers a reproductive advantage, that doesn't mean it isn't an "end of itself". You are confusing the benefit it may confer on the SPECIES and the benefit it confers on an individual.

To see the difference, think about the human ability to run reasonably fast on two legs. From an evolutionary perspective, that allows the species to escape predators so that we are able to reproduce.

But from an INDIVIDUAL perspective, the human ability to run reasonably fast on two legs confers a number of advantages. For one thing, we can escape predators even if we have no intention of reproducing. For another thing, we can enter into contests of speed where we attempt to outrun other humans.

Sexual pleasure, even if its EVOLUTIONARY purpose is to encourage reproductive, confers individual benefits to humans even if they have no interest in reproducing. They can masturbate, have oral or anal sex, have sex using birth control or when the woman is not ovulating or when one or both members of the couple is infertile, etc. All of those things are perfectly legitimate and proper things to do, and are not made illegitimate just because they don't coincide with the evolutionary purpose of sexual pleasure.

If abortion were outlawed tomorrow, the state is not doing a single thing to a mother's body. If the intercourse was voluntary, the mother and father themselves created the condition of pregnancy.

If I leave my door unlocked, I created the condition by which a burglar could come into my home. Nonetheless, if the state passed a law that prohibited people who left their doors unlocked from defending their homes, it would be a gross violation of any natural rights conception of self-defense. And if the state passed a law saying that the burglar is entitled to keep anything he or she finds so long as he or she enters the home through an unlocked door, it would not make sense to say that the state has done nothing to threaten my property because I created the condition by leaving the door unlocked.

What you are doing is saying that because a woman has sex, the state can come in and impose a PUNISHMENT on the woman, in the form of a legal duty of care for the fetus thus conceived.

And there is no way that doing THAT isn't coopting a woman's body. You can argue that the state is ENTITLED to coopt her body because she had sex, but that's the unstated premise of your argument. Without that step, you can't get from "couple has sex" to "state has power to impose duty of care on woman with respect to fetus living inside her". And when you take that step, you are basically saying that a woman having sex is such a horrible, awful activity that the state should have the right to punish her by making her have a baby.

# posted by

Dilan : 1:44 PM

The idea that sex "supposed" to lead to childbirth brings to mind Bradwell v. Illinois, concurring opinion, about the natural role of woman to be a wife and mother.

This might be raised to show the problems with "natural law," but the alternative has similar problems in application at times. That is, prejudices seep in, even though it is allegedly objective.

Natural law suggests rights pursuant to the nature of things and experience, not written law alone. That can be interpreted in various ways. This includes determining that human experience shows that women should have equal rights and control of her body.

This "is/ought" problem underlines that natural law is something of a legal fiction, but all human "law" is. It's how you apply it.

# posted by

Joe : 9:20 AM

While progressives who have historically eviscerated the Constitution issue a call to respect the document, Tea Party folks who are generally constitutional originalists held a conference at Harvard law discussing the pros and cons of a constitutional convention to overhaul the charter.

http://conconcon.org/

Interesting times.

# posted by

Bart DePalma : 11:05 AM

Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash is a good read & appropriate in respect to learning how the Constitution was understood over the years. The author has in the past noted he is a conservative and supported Bush as President.

As to that link, sounds like something Prof. Levinson would be interested in. Both of the guys on the home page were on Chris Hayes' program on MSNBC last weekend (I only saw a bit) and it should be archived on the "Up with Chris Hayes" website.

# posted by

Joe : 12:13 PM

Our yodeler's reference:

" ... Tea Party folks who are generally constitutional originalists ... "

might apply to those participating in the conference at Harvard but I recall polling that seriously questioned Tea Party folks' understanding of originalism, especially which version. The "conconcon" portion of the link provided by our yodeler is self-descriptive.

# posted by

Shag from Brookline : 1:37 PM