Today’s guest repost is by Austin’s Constitutional Scholar Jon Roland, constitutionalism.blogspot.com.
The first issue is presented by the statement by
nominee appointee Brett Cavanaugh in his acceptance speech, that he would not find rights not explicitly recognized in the main Constitution.. This has been an issue since the nomination of Robert Bork, who considered the Ninth Amendment, which calls for the nondisparagement of rights that are not “enumerated” (made explicit) somewhere in the Constitution, as amended, to be an “ink blot”. There is strong opposition to Supreme Court judges doing that, especially from so-called “conservatives”, who don’t understand that constitutional rights are all “immunities”, restrictions on the powers of government. They are not “privileges” to receive a sufficient amount of public resources, such as for education, healthcare, elder support, or any other objects of public subsidies.
Interestingly, in the case of Roe v. Wade, the Fifth Circuit decided that a “right to an abortion” was a Ninth Amendment right of a woman “to choose whether to have children”, which by the 14th Amendment, was “incorporated” for the states. This presented the Supreme Court with an apparent problem, because there was opposition to funding unenumerated rights in the Senate. The Fifth Circuit found a Ninth Amendment “right to choose whether to have children”. So the SC tried to sustain the Fifth Circuit without embracing the Ninth Amendment. The result was an incoherent opinion. There was no way to avoid the Ninth Amendment.
It would perhaps too much to expect a nominee to venture into an extended discussion of what a “right” is, and what it is not. It is awkward to say “I will not find a ‘right’ to a sufficient amount of a public resource.” That is too complicated for most senators. So the candidate denies he will try to find any “unenumerated” rights. That is somewhat disingenuous, but the issue needs to be discussed.
Republicans, Dixiecrats, No Libertarian Party!
When “life” begins
One of the potential nominees, Amy Barrett, has been reported to have stated that human “life” begins at conception. That is a misstatement of the issue in Roe v. Wade. which in its essence was not about “life” nut about “personhood” because “Rights (immunities)” attach to “persons”, (roles in court), not to “life”, despite what the Declaration of Independence says. (That is why some activists have sought to move the commencement of “personhood” back to conception. That would be a mistake. We cannot allow each state to redefine “personhood”, because if we did, a state could define some people to be nonpersons, without rights. So there has to be a uniform definition across all states if the protections of the Constitution are not to be meaningless. That is the basis for finding the right to be incorporated under the Ninth Amendment, as the Fifth Circuit did.
So when does “life” begin?
Not at conception. Each individual is the latest in an unbroken chain of life that goes back to at least the point when the first single-celled organism became a multi-celled animal, which occurred about 650 million years ago, during the pre-Cambrian era, when the surface of the Earth was covered with ice (“snowball Earth”) and there was only one continent, Rodinia. We are all descended from that multi-celled organism. That is when “life” began.
So when does “personhood” begin?
This was declared by the jurist Edward Coke in the 15th century, and later restated by legal scholar William Blackstone, in the early 18th century, who provided most of the definitions for terms used in the U.S. Constitution. They held that “personhood” begins at natural birth, or induced natural birth (they had Cesarean sections in those days). Some of the states later found that personhood began with baptism, entry of a name in church records, or even later. Not at “conception”, the date of which could not have been defined with any precision in those days, or even now.
Consider what would happen if we defined “personhood” to begin at conception? It would make every fetus the ward of a court, with the court having power to supervise the pregnancy. It could order the woman to continue a pregnancy, and not terminate it, under penalty of law. That would be forced pregnancy. Do we want that? Every pregnant woman chained to a bed. Anyone see the play “A Handmaid’s Tale”. Good way to stop everyone from having sex.
Sinfest.net webcomic 2 awe
Need for uniformity
Incorporation of a Ninth Amendment right is required by the need to have a uniform definition of “personhood” (legal role) across all jurisdiction, since constitutional rights attach to “persons” and not just to “citizens” or “life”. If states could define personhood, they could deprive anyone of rights by defining him to be a “nonperson”. Thus a state could find that Blacks are not persons as a way to deprive them of their liberty.
1. Roe v. Wade, 1221 (N.D. Tex. 1970) (“On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree.”).
2. Roe v. Wade, 410 U.S. 113 (1973).
3, A Handmaid’s Tale, Margaret Atwood.
4. Robert Bork and the Inkblot, Kurt Lash.
5. Constitutional views on abortion