Quick, paranoid thought on banning abortion nationwide

It’s a common belief – one I’ve endorsed in the past – that if Roe v Wade is overturned, the result won’t be the nationwide banning of abortion in the USA, but rather a return to state-by-state rules. So abortion might be outlawed in Alabama, but it would remain legal in New York, and so on.

But lately I’m not so sure. The “Partial Birth” Abortion ban is a nationwide ban, enacted by the federal congress. Yet no one seems to be making a serious case that the PBA ban is unconstitutional because Congress has no authority to pass a nationwide abortion ban. (It does show what hypocrites “federalist” Republicans are, though.)

Since the Republicans in Congress believe they have the right to ban PBAs nationwide, then they must believe they have the right to ban all abortions nationwide – if Roe is overturned.

Of course, Democrats in congress (along with the few moderate Republicans that still exist) would try to block such legislation – so even if Roe is overturned (which could only happen if two of the current pro-Roe justices are replaced, which could only happen if Bush wins re-election, and then only if two pro-Roe justices die or retire), it couldn’t happen unless the Republicans pick up a few more seats in the Senate.

That’s a whole lot of “ifs” and “unlesses”; none of them are unlikely on their own, but it’s probably not likely that all of them will take place. So I’m not saying it’s time to panic. I am saying, however, that the “if Roe is overturned it’ll be up to the states” argument may not be as ironclad as it once appeared.

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71 Responses to Quick, paranoid thought on banning abortion nationwide

  1. 1
    ANONY says:

    Actually, the essence of the conservative argument against Roe claims that the issue will be return to the political process. Why liberals are afraid of making their case is beyond me.

  2. 2
    Rad Geek says:

    It’s a common belief – one I’ve endorsed in the past – that if Roe v Wade is overturned, the result won’t be the nationwide banning of abortion in the USA, but rather a return to state-by-state rules. So abortion might be outlawed in Alabama, but it would remain legal in New York, and so on.

    But lately I’m not so sure. The “Partial Birth” Abortion ban is a nationwide ban, enacted by the federal congress. Yet no one seems to be making a serious case that the PBA ban is unconstitutional because Congress has no authority to pass a nationwide abortion ban. (It does show what hypocrites “federalist” Republicans are, though.)

    This is certainly something to fret over, but I think a lot depends on how the Court would overturn it, if it were to do so. Certainly I don’t doubt that the hard Right in Congress would have no qualms at all about passing a federal abortion ban, but the way that the Rightists on the Court think is not necessarily the same as the way that the Rightists in Congress think. Rehnquist and Thomas, for example, would certainly be in anti-Roe majority if one emerged (if one does before Rehnquist retires, at any rate), but I think it’s pretty likely that if either of them were in the position of writing the majority opinion, the precedents and arguments they’d be resting on would mostly be arguments resting on federalist grounds, which would also give grounds for shutting the door on a federal ban. (Scalia would be more worrisome, since he is much more of a cultural royalist than either of the other court ‘conservatives.’)

    That doesn’t mean that a rollback of Roe would be good news of course; it would be terrible news. But I’m not sure that a federal ban would be all that likely to immediately ensue.

  3. 3
    Rad Geek says:

    I have to disagree with ANONY’s claim that:

    Actually, the essence of the conservative argument against Roe claims that the issue will be return to the political process.

    The essence of many vocal abortion opponents’ (who claim, at least, to be conservatives) is that Roe legalized what they consider to be murder, on a massive scale. The groups who advocate amending the Constitution to enforce an anti-abortion position on all states are certainly not mainly interested in federalism or in keeping the abortion debate within the legislature. (Of course, a Constitutional amendment has to pass various legislative bodies, but the point of the amendment is to remove the issue from the usual deliberations of legislatures as well as from courts.) (If they complain about “judicial tyranny” or an overweening federal governments, that is no different from when Confederates started crying state sovereignty after cheering Dredd Scott and the Fugitive Slave Act a decade before.)

    Of course, there are some whose arguments are consistently focused on federalism and the separation of powers.

    I also fear there is also a certain lack of imagination involved when ANONY asks:

    Why liberals are afraid of making their case is beyond me.

    I think that in many ways it’s regrettable that Roe is the court decision that we pro-choicers are stuck with defending; and the nationwide scope of the decision had very unfortunate side effects, insofar as it turned the burgeoning feminist movement away from local activism and enmired them in the federal bureaucracy. Nevertheless, the answer to this quandry is not at all difficult: the immediate effect of devolving abortion to the state legislatures would be an immediate wave of abortion bans in something like half the states in the country, at least. It might be better, in the long run, for pro-choice organizers to have to get on the ball and win the battle state by state. But women who need an abortion–by definition–don’t have time to wait for the long run. Their body is imperiled now, and if you believe (as you do, if you are pro-choice) that the right to abortion is entailed by a woman’s right to control her own body, then you believe that women who live in states where abortion is outlawed would be facing conditions of slavery. Set aside for a moment the question of whether or not this view is correct (although it is); it should, at least, not be hard to see why someone who holds it would think that an overturning of Roe would be a pretty dreadful thing.

  4. 4
    Echidne says:

    I have no idea what would happen. Probably what used to happen before: no abortion for the poor and convenient airplane trips to Europe for the daughters of the rich, or maybe even more conveniently, to Masschusetts or California. The rich fundamentalists could avail of these services in nice secrecy. Plus lots of secret abortions for the poor, too, though not as comfortably, as used to also be the case, with coathangers and gin and hot baths and by riding a bicycle on train tracks: all deaths I know about. What would NOT happen is a world where there are no abortions and where every child is wanted.

  5. 5
    Deep River Appartments says:

    I’m fairly sure that Roe Vs Wade will be overturned sooner or later, so I’ve been trying to imagine the landscape of choice after that dreadful event.

    I know I’ve mentioned it several times before, but the example of Portugal lingers in my mind. I can easily picture clandestine organizations like JANE being reactivated on a massive scale (JANE was a secret group of women who trained themselves to provide the safest underground abortions possible in the years just before Roe). The anti-choicer will eagerly crack down on doctors and back-alley-men who provide abortions and an uneasy public won’t say much, but I like to think the public will definitely hesitate when it comes to arresting friends, wives, sisters, and mothers. I like to think the public will squirm and get uneasy when they see hundreds of Debbie-with-three-kids-from-next-doors going to jail.

    Its easy for some folks to say “gosh, that fetus looks so human, I guess it really should have rights” when they can’t imagine an anti-choice nation. But when they see the consequences of their beliefs in put into action…let’s just say the humanity of handcuffed women is likely to become much “realer” than the nebulous “humanity” of a cell cluster.

    I won’t even mention the PR effects of the return of botched abortion deaths, especially now that the media is far more likely to pay attention to such things. Shouts of “she sinned so she deserved it!” will soon fall on disgusted ears.

    And in the above scenarios I’m only assuming abortion providers will be arrested. Can you imagine the wake up call the country will get if women who sought abortions get arrested? Nothing will emphasize the individual nature of choice faster. The true complexities of the real reasons for why women make the choice are sure to get wider attention. And of course the sheer hypocritical vindictiveness of the opposition will be exposed in all its horrific glory.

    I hate to echo Ralph Nader’s “things must get worse before they get better reasoning, since the overturning of Roe vs. Wade will cost many women’s lives and futures, but at least we can take comfort in the fact that any attempt to enforce it will soon overwhelmingly benefit the pro-choice side. We’ll lose the battle, but the war is ours.

  6. 6
    Lauren says:

    DRA, that was the scariest prediction I’ve heard in a long time. Although I’m afraid you might me right, I hope it never comes to that.

  7. 7
    Pangloss says:

    Debating important issues of the day among members of the electorate is just so… messy.

    Things are so much better when a court just seizes control from a legislative body and rules by fiat, a la Roe (and Goodridge, for that matter).

    Democracy sucks. But buck up, we’ll win the war against it.

  8. 8
    lucia says:

    Of course Pangloss, you are correct. It would be so much better to leave the important issues to the legislative and executive branches and sometimes, the police. Heaven knows, none of these groups would ever infringe on rights!

    They would never intentionally tax people and then restrict access to education.

    They would never restrict one’sright to marry.

    They would never lock a person in a small room away from anyone and force confessions.

    In fact, despite James Madison’s expressed fears, I’m sure the majority would never trample the rights of any group. Certainly not those of the minority! And of course, Madison was wrongheaded when he suggested the judiciary would stand as the bullwark to enforce the bill or rights!

    Imagined, he managed to convince Congress of these things, and they wrote the Bill or Rights! And imagine, they were ratified! How could that have happened when it is all so wrong?

  9. 9
    Pangloss says:

    Indeed, lucia! Which is why I say thank God (if you’ll pardon the expression) those old white 18th C. men included abortion and gay marriage in the Bill of Rights. You know, those Amendments that prohibit any state from using its police powers to regulate abortion in any way during the first 2 trimesters (trimesters! now, there’s a hoary concept!), and that mandate the states to redefine “marriage” in a completely novel and heretofore unknown way!

    Now, let me dig out my copy of the Constitution and give you the numbers of those Amendments.

    Bear with me a moment…

    Hmm, they’re in here somewhere…

  10. 10
    Rad Geek says:

    “Pangloss” offers the following breezy attack on the strategy of Roe:

    “Debating important issues of the day among members of the electorate is just so… messy.

    “Things are so much better when a court just seizes control from a legislative body and rules by fiat, a la Roe (and Goodridge, for that matter).”

    The problem here is not so much with the position (although it happens to be wrong) but rather with the complete lack of argument. There is a perfectly well-established pro-choice argument for why it’s at least as appropriate to handle the issue through the courts as it is through the legislature, to wit because:

    (1) *Some* things are not proper subjects for the legislature to decide on.
    (2) Abortion is one of those things.

    Now, premise (1) is a perfectly reasonable premise; I agree with it and so, in fact, do you. The argument is simple: no legitimate government of any kind — including democracies — could presume to put certain fundamental rights up for legislative debate, because no government — and a fortiori no democracy — could possibly have the authority to curtail those rights. Here’s an example: say that I try to introduce a bill into the legislature which claims to authorize hunting all Christians like animals. Now, there’s a pretty good argument that, under Amendments IV, V, VIII, and XIV (and perhaps under Article I, Section 9), such a bill is blatantly unconstitutional. There’s also a good argument that **even if it weren’t clearly banned under the language of the Constitution**, the legislature could not possibly have the authority to enact any such bill, because **no-one could**, and any government that presumes to have that authority is committing precisely the sort of abuses that justify revolutions against it (this is the result if one takes constitutional appeals *seriously*–i.e., as claims about *legal authority* rather than exegetical questions concerning what is written on some sheet of paper with the word “CONSTITUTION” at the top).

    Premise (2) is, I take it, the controversial premise. But of course you simply breeze by the pro-choice *arguments* (whether those contained within Roe itself, or those made by pro-choicers independently of Roe) for finding a constitutional defense for taking abortion out of the hands of the legislative process. The Roe argument is based on precedent of a general right to a “private sphere” that the justices claim to have found in the “penumbra” of the Bill of Rights; other arguments are based on, for example, the claim that abortion is justified by a woman’s right to control her own body, and thus that outlawing abortion constitutes legalized slavery.

    The point of touching on these arguments is not to insist that they are sound (for what it’s worth I think the Roe argument is not, and the slavery argument is). It is, rather, to point out that you have simply bypassed them rather than engaging with them. (You claim, for example, not to be able to find protection of abortion rights in the Bill of Rights; but the text of Roe gives a detailed argument, with sources in past cases, as to how they found it there. Staring at the text and crying “I don’t see it!” is not nearly as reliable a procedure as talking about the argument of Roe and trying to show the points at which you think it is specious.)

    People on both sides of the aisle often complain about how no argument is possible on the issue of abortion. I don’t think this is true: the problem is that people generally don’t argue about it at all; they merely assert. So, in the spirit of trying to get past this impasse, let me give you my arguments for claiming that it’s perfectly legitimate for courts to enact measures like Roe, and you can present your own counter-argument, or else critique my argument by identifying which steps are invalid or which premises you take to be false.

    (1) No government body has the legitimate authority to legalize slavery. (premise)
    (2) A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
    (3) Courts can only enforce such laws as have successfully been made by the legislature. (premise)
    (4) Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
    (5) Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
    (6) Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
    (7) Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)

    Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.

    So is there something wrong with this argument? If so, what? If not, then what’s the problem with overturning abortion laws in the courts?

  11. 11
    lucia says:

    Pangloss,

    Your’re still oooo hhhhh sooo right! And gues what?

    The right to an education isn’t in the bill of rights! So, clearly SCOTUS stepped out of bounds spreading that around!.

    And guess what? The right to marry isn’t in there at all! So.. clearly SCOTUS stepped out of bound when they thought the Loving’s had a right to marry each other!

    Gosh. They are just making up rights left and right!

    Do you suppose that, reading the 9th ammendment, and James Madison’s justification for putting it in there, might be the reason they’ve just gone willy nilly inventing these things. Right to marriage indeed!

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    (Hmmm… I wonder if this could conceivably protect me if the US, like China, starts mandating abortions. Naahhh… the right to not have an abortion is not in the Constitution. The founding fathers surely weren’t thinking of something like THAT! )

  12. 12
    Pangloss says:

    RadGeek:

    (1) Slavery is expressly prohibited by the 13th Amendment of the US Constitution.

    (2) True.

    (3) “Successfully enacted”? Perhaps we can stipulate that the SupCt enjoys the power and privilege of judicial review of legislative enactments.

    (4) False. You trivialize the historical institution and current practice of slavery. BTW, who’s doing the “forcing” in your hypo?

    (5) True, if you substitute “laws” for “bills.” (And BTW, courts technically don’t “enforce” laws. The executive does that. Civics 101.)

    (6) Same as (5).

    (7) Your phrasing is again peculiar. If you mean to contend that a court must strike down any law the intent or effect of which would be to restrict the practice of abortion in any way and at any stage of pregnancy, then you’re quite wrong.

    There, now, that was fun! Now, as to your earlier “premise” that abortion is “not [a] proper subject for the legislature to decide,” I direct you to the dissenting opinions of Justices Black and Stewart in Griswold v. Conn. for a cogent rejoinder.

    Ciao!

  13. 13
    Pangloss says:

    Novel idea, lucia, but you won’t find the SupCt relying on the Ninth Amend. in Loving, Brown or many other cases. But you can always wish.

  14. 14
    lucia says:

    Novel idea, lucia, but you won’t find the SupCt relying on the Ninth Amend. in Loving, Brown or many other cases. But you can always wish.

    Nope. I didn’t say those were based on the 9th.

    Lovign was based on the14th. Guess what? It doesn’t say anything about marriage!

    My purpose in bringing up the 9th is to suggest that the founders who wrote that intended the bill or rights to be interpreted broadly. (In contrast, it is clear that they interpreted the powers of the federal government to be interpreted narrowly

    You are calling for a ridiculous narrow interpretation of rights. The bill of rights says nothing at all about marriage. Or abortion. Or wearing hats. (If you wish to understand the hat reference, I refer you to the Federal register during the first Congress when the bill of rights was being discussed. )

    That does not mean that the bill of rights is silent on these things!

    You believe it is silent, because your interpretation is narrower than one would obtain from a textual reading; texual reading describe broad rights. Although there is no right to marraige, if the government creates civil marriage, discrimination in marriage is banned because it violate due process.

    I ask you this pangloss:

    If the state of illinois pass a law requiring abortion second pregnancies, would that violate the bill of rights?

    On what ground?

  15. 15
    Deep River Appartments says:

    Two things,

    First, I forgot an important disclaimer in my last post. Everything I described depends on the massive changes that have occured in our society in the 30 years since Roe vs Wade was passed, so I was basically pointing out how this time things would be very different from the last time abortion was illegal. You can never squeeze the sanctioned choice genie back into the bottle now that it has been released.

    Second, I’m going to theorize loosely on something else. I’m beginning to anticipate that the now practically unstoppable movement for gay rights, a tidal wave gaining force even among conservatives, will eventually wash away some of the crucial rotting timbers propping up the anti-choice edifice. The fundies may have an easy time emotionally flimflamming uninformed average Americans (especially brainwashed nonfeminist women) to their side on the choice issue, but only the most delusional bible thumper can still maintain that legal recognition of homosexuality doesn’t have broad and growing support.

    Such recognition for lesbian women will highlight their guilt free sexual freedom, the fearless control they will enjoy over how and when their family will grow, if at all. This sense of freedom will trickle through the culture, not only helping patriarchy-socialized hetero women to reconceptualize their gender, but building their resentment over their own enslavement to the whims and accidents of their reproductive system.

  16. 16
    Rad Geek says:

    Pangloss,

    Thanks for your comments in reply to the argument that I presented. Rather than fisking through each of your replies, let me try to put some issues aside quickly and then move on to the main point of the debate.

    First, concerning (1): (1) is a premise, not a step inferred in the course of the argument. One lemma that you could offer in support of (1) is the one that you give here, based on the 13th amendment. That has the positive feature that it’s obviously encoded in American positive law; it has the negative feature that it’s limited to American positive law by the nature of the argument. (As it happens, I think that is a wrong step: *no* government could *possibly* have the authority to legalize slavery, because slavery is a violation of the inalienable human rights that governments are instituted to protect, and no matter how hard they try to step outside of those boundaries they can never have the legitimate authority–which is something quite different from having the brute power–to do so. But that argument is a sideshow for the purposes of this argument; I take it that we agree on the premise, whether or not we agree on the reasons to give for it if challenged, so let’s move along.

    There seems to be a confusion throughout your replies concerning what it means to make something law. Obviously it is not enough that you write some things down on a piece of paper with “THIS IS A LAW” at the top; I can do that, but doing so would have no effect whatever in the world beyond the paper I was writing on. The reason for that is that laws can only be made by legitimate legislative authorities. But what counts as a legitimate legislative authority, and what is it for one to count as having made a law?

    Well, one requirement is that whatever body does the legislative work (the two houses of Congress, in the United States) has to have some sort of internal procedure for determining when the bill will be put forward (supermajority vote, consensus, arbitrary fiat, or–as is the case for most bills in the U.S.–a committee recommendation process followed by a majority vote of members). But that is not the only requirement; there is a prior requirement: in order for them to make a law the law has to be within the scope of their legitimate authority. (Suppose that the United States Congress voted through a bill to change the speed limit in Honduras, and the President, for whatever reason, signed it. Would they have made a law changing the speed limit in Honduras? No, of course not–they have no authority to legislate the speed limit in Honduras. All they have done is waste a lot of paper voting on, and promulgating, a dead letter.)

    Thus we get premise (2), a premise that you seem to have endorsed above: legislatures can only make laws within their proper sphere of authority. Combined with (1), which states that legalizing slavery is (ipso facto) beyond the rightful authority of the legislature, this gives us the upshot that the legislature cannot make a law (no matter how hard they try) that legalizes slavery. They can write “slavery is legalized” on a piece of paper, and vote to put “THIS IS A LAW” on the top of the piece of paper, but that confers no legal authority on its own.

    So far, so good; in any case you seem to have agreed with the premises. Your first cavil arises with premise (3) — that courts can only enforce the laws that have been made. (Yes, “enforce”: if a judge is not trying to enforce laws when she orders you to pay a fine or not to pay a fine, orders the Department of Corrections to put you in prison or to release you, &c., then what in the world is she doing? If there’s a word that will better convey the meaning–”Ruling on” the laws? “Adjudicating based on the laws”? “Recognizing” the laws?–I’ll be glad to use it.) This should, in any case, be a premise that you readily consent to, given what you’ve said so far: judges have no power to legislate; they only have the power to make rulings based on the laws that have been made by the legislature (there is a minor exception to this in the field of the common law, but it isn’t immediately relevant to this argument; in any case, it’s not a counterexample to (3) since the legitimate precedents of common law are also laws that have been made, just by different people). The point here is that judges cannot invent new laws, and so if the legislature (for example) never passed a law lowering the speed limit to 45 miles per hour, a court has no authority to impose a limit on its own and fine someone for exceeding it.

    But remember what was just said: the conjunction of premises (1) and (2) (to which you agreed) results in the conclusion that the legislature cannot ever make a law–even if they try to, and pass a bill to do so–that legalizes slavery. If that’s so, then even if the legislature has passed a bill legalizing slavery there is no law in the United States legalizing slavery. And if courts can’t rule based on laws that haven’t been made, then any court which enforced a slavers’ claim to own other people would be acting outside of its proper sphere of authority.

    This is why “bills” was used consistently rather than “laws”: if you endorse premises (1) and (2) then there can be no such thing as a law that legalizes slavery. There can, at the very most, be bills that a majority of Congress and the President tried to make laws, but failed.

    That leaves us at premise (4), which is (I think) the real meat of the debate: the premise that forcing a woman to carry a pregnancy to term against her will is a form of slavery. Now, I haven’t (yet) introduced arguments in favor of this premise; and you evidently don’t agree with it. Very well; it’s a good argument to have, and one that I’ll be glad to join–at least, after I’ve gotten back from spending the weekend in DC marching in support of my answer to the question.

    But first, I want to clear the ground of irrelevancies. Given what I have said about premises (1), (2), and (3), do you accept all three of these premises? Further, do you agree, based on the argument I’ve given, that if one accepts (as I do, and as many other pro-choicers do) (1)-(3) and premise (4) together, it entails the conclusion, (7)? If so, then that should be sufficient to show you why pro-choicers think that Roe-style court decisions are a perfectly legitimate means for defending abortion rights. Of course, showing why we think something is true is not necessarily the same thing as showing it is true; if premise (4) is false, then it ain’t good grounds for drawing any conclusions. But it should show you that the real meat of the issue is whether or not abortion is the sort of fundamental human right (a right to control over your own body) that I, and other pro-choicers claim it is. If you accept premises (1), (2), and (3), then appeals to “judicial activism” (or “judicial tyranny”) and complaints about separation of powers simply glance past the pro-choice argument: Roe-style decisions could exceed the courts authority only if no argument of the sort I gave above applies, and so the debate over (4) is where the real action is.

  17. 17
    Tom T. says:

    Another thing to keep in mind: Roe v. Wade has made it very easy to be pro-life. A politician can make any sort of pro-life policy statements he or she calculates will appeal to that segment of the electorate, without ever having to worry that those policies will be put to a test that might have real-world consequences. Pro-life voters appreciate the gesture, and many pro-choice voters shrug it off, because they all know that Roe will block any serious alteration of abortion law. (Sure, Roe could be overturned, but I think a lot of pro-choice voters have come to see that as unlikely after 30 years).

    If Roe were actually to be overturned, then all those easy pro-life positions will suddenly alienate a lot more people on the other side of the fence a lot more strongly. I suspect that a lot of politicians who currently hold themselves out as pro-life would find ways to redefine themselves as much more pro-choice, if that ever happened.

  18. 18
    Don P says:

    Pangloss:

    The most important fact about those dissenting opinions on the constitutional right to abortion is that they are dissenting opinions. The majority has repeatedly held that abortion is a constitutional right. Calling this “judicial fiat” or somesuch is just your way of saying “I disagree with the Court’s interpretation of the Constitution on this question.” That’s fine. You are perfectly free to disagree. But in a constitutional republic, someone has to have the final say on what the Constitution means, and in our system that final say goes to the Supreme Court.

    If you don’t like this, you are free to agitate to change America into a pure democracy, where there are no such things as constitutional rights, and all rights are statutory in nature, subject to the ebb and flow of majoritarian politics. But I rather doubt that you would be any happier under the set of laws such a system would create than you are under the present one.

  19. 19
    lucia says:

    Hi,
    Because Pangloss likes to comment on “what the founders were thinking”, I want to add a couple of historical notes about what Rad said:

    James Madison, Jefferson, Adams, James Wilson, and pretty much everyone who signed the Declaration of Independence believed there were “inalienable” human rights. They believed goverments did not have authority to trample on these rights.
    the inalienable human rights that governments are instituted to protect, and no matter how hard they try to step outside of those boundaries they can never have the legitimate authority–which is something quite different from having the brute power–to do so

    James Madison, and the federalistst also thought and wrote about it:
    But that is not the only requirement; there is a prior requirement: in order for them [leigilsators] to make a law the law has to be within the scope of their legitimate authority.

    James Madison, and those writing the constitution and the bill of rights considered described the role Rad Geek is illustrating with this sentence. (I cut the end becuase it alludes to a specific example.)
    And if courts can’t rule based on laws that haven’t been made, then a…. (I would have said: If the courts can’t rule that a bill is not a valid law, then legislators will be permitted to enact illegal “laws”.

    Rad Geek may have a radical sounding pseudonymn, these posts describe very traditional American thinking on the subject of the role of the Supreme Court!

  20. 20
    PMC says:

    Don P: Were you similarly sanguine about the SupCt’s “final say” in the case of Bowers v. Hardwick, or did you perhaps find the dissents more persuasive?

    lucia writes, “If the state of illinois pass a law requiring abortion second pregnancies, would that violate the bill of rights?”

    Ah, nothing like an old reverse-slippery slope argument. Do you truly believe that Roe is all that stands between the people and mandatory abortion? If so, then no wonder you place such faith in it and take such comfort in its weak reasoning.

    But I’ll play your game for a bit. Would such a law be unconstitutional? I dunno. The SupCt, esp. this bench, has proven that it can find a way to “interpret” the Const’n to mean just about whatever it wants it to mean at any given point in time. I suppose I could make arguments based on the 1st, 4th or 14th Amendments, but who knows? The SupCt has wholeheartedly approved of involuntary sterilization in the past (Buck v. Bell), and that decision’s never been expressly overruled, so I’m sure that it could find a way to approve of your hypo (w/ or w/o Roe).

    I’ll say this much for your hypo: If we ever see the day that a legislature proposes mandatory abortions for some segment of the population, you can bet it will be the result of a movement from the zero pop. growth, right-to-die crowd, i.e., the secular left, the same intelligentsia who supported eugenics in the early 20th C.

    BTW, no one seriously cites the Declaration of Independence as a source of positive law.

    Thanks for playing!

  21. 21
    Raznor says:

    I think you miss the point PMC. Which is if you believe that it is not unconstitutional for the state to ban abortion, then the question is would it be unconstitutional to impose mandatory abortion. If not then okay. But if so, why? You haven’t answered this question. You only say how this Supreme Court acts in bad faith in interpreting the Constitution and to illustrate it, you cite a case that’s 77 years old.

    And to put modern academics in the same boat as academics from 100 years ago shows that you have no respect for anyone who disagrees with you. I’m sick of you’re patronizing, insulting style and that’s from only one post.

  22. 22
    lucia says:

    The SupCt has wholeheartedly approved of involuntary sterilization in the past (Buck v. Bell), and that decision’s never been expressly overruled, so I’m sure that it could find a way to approve of your hypo (w/ or w/o Roe).

    And no, I am not under the impression that the “only” thing standing between us and forced sterilizations, which were enacted by past legistlatures is the Supreme Court. But, I’d rather have the possibility of the a Supreme Court overrulling, that follow your logic that they should not overrule things.

    Yep. Sterilization isn’t discussed in the constitution!

    Yes. The court did approve forced sterilizations enacted by the legilslature. The approved government intrusion on private decisions before the court “invented” the cluster of privacy rights based on.. Oh, but you guessed the right amendments!

    It is fun playing.. huh?

    The possibility that the legislature would trample our rights, and the court would not act to curb the legislature was discussed during the 1st Congress. It was decided that our rights should be decreed anyway. The 1sy Congress had the strange idea that, although the courts might, from time to time, fail in their duty and also fail to uphold our rights, it was still better to write the bill of rights.

    And now the founders gave us have the 1st, and 4th. And later we got 14th amenements. When the court acts bravely, reads then textually, and follows the intent of those who rote the bills, it recognizes this right:

    We have a right to run our personal lives without undue interference by the government.

  23. 23
    PMC says:

    Oh, was that lucia’s point, raz? I couldn’t tell. (I suspect you must be a ‘modern academic’ — whatever that is — to have discerned it, and to find offense where none was offered.)

    Anyhow, I thought I did answer her question. (“I dunno.”) The practice she proposes (state mandated abortion) is bodily invasive and completely unknown in our nation’s history. Those are obvious problems for the state legislature. As I suggested, the 1st (free exercise clause) and the 4th (search and seizure) amendments (as applied through the 14th) come to mind as obvious likely obstacles to the state’s proposed scheme.

    In any event, it has nothing to do with Roe, which was directly contrary to the nation’s positive law history. Every state in the union had legislation govering abortion. Such statutes were common throughtout US history to 1973 (unlike the hypo).

    lucia also offers the platitude, “We have a right to run our personal lives without undue interference by the government.”

    I suggest to you that that’s a meaningless sentence (unless meant as a mere libertarian slogan). And to the extent that the founders would have endorsed that sentiment, it is obvious that they would have been referring to slavery, not abortion.

  24. 24
    Raznor says:

    PMC, you’re patronizing tone is quite annoying. But let’s see.

    What’s a modern academic? Just that. Someone who is alive now and works in academia. To that extent I am. But these aren’t to be grouped with as you said:

    the same intelligentsia who supported eugenics in the early 20th C.

    Implying that “intelligentsia” is around today. But they aren’t. Do you know where the intelligentsia that supported eugenics is? Completely gone. It’s a bullshit theory and anyone worth a damn in the academic world knows it. It’s gone the way of Aristotlean physics, only its heyday was far shorter.

    You really don’t have an opinion on whether coercive abortion would be unconstitutional? Fine, we’ll move on.

    But then there’s this:

    And to the extent that the founders would have endorsed that sentiment, it is obvious that they would have been referring to slavery, not abortion.

    Really, is it that obvious that they were referring to slavery that specifically that any other possible interpretation would be rejected by them? It doesn’t seem that way to me, but since you’re apparently blessed with the gift of telepathy that stretches to the far reaches of time and space, I’m glad you’re here to enlighten me. After all, I’m just some sort of crazy zero-population growth, right-to-die, eugenics supporting intelligentsia, so what would I know?

  25. 25
    Deep River Appartments says:

    Just got back from the march on Washington. Incredible. Easily over a million people. Probably the most awe inspiring thing I have ever seen.

    My faith in the American public has been somewhat restored. If it can still generate this many defenders of women despite the sickness of our apathetic culture then there is hope that the dark days ahead will be short and few.

  26. 26
    Pangloss says:

    One need not be telepathic to know that no so-called founder ever said, “We have a right to run our personal lives without undue interference by the government.”

    One need not be telepathic to know that if any did, then the institution of slavery, which was clearly Constitutional, would obviously be covered by such sentiment, while the institution of abortion, which was commonly proscribed and regulated in the early decades of our republic, would not.

    One need only a slight knowledge of history.

  27. 27
    lucia says:

    The practice she proposes (state mandated abortion) is bodily invasive and completely unknown in our nation’s history. Those are obvious problems for the state legislature. As I suggested, the 1st (free exercise clause) and the 4th (search and seizure) amendments (as applied through the 14th) come to mind as obvious likely obstacles to the state’s proposed scheme.

    PMC. Wait a minute! Now, you think that government mandated, bodiliy invasive procedures are completely unknown in our nation’s history? I thought before, forced sterilization was known? Make up your mind.

    I suggest to you that that’s a meaningless sentence (unless meant as a mere libertarian slogan). And to the extent that the founders would have endorsed that sentiment, it is obvious that they would have been referring to slavery, not abortion.
    I suggest that the founders were quite fond of what you might call “meaningless slogans”. Thomas Jeffereson wrote quite a few of them.

    Moreover, if you think the founders were thinking rights should be narrowly defined, I suggest you read the Federal Register recording the discussions on the floor of the first congress. The discussed the hypothetical case that the legistlature would pass a law insisting people take off their hats!. I mean this literally. The really discussed the idea of wearing hats.

    The founding fathers felt that Congress should not be able to force people to wear hats! They also agreed that they could not list every single write– and so inserted the 9th amendment.

    The founders believed in slogans and rights!

  28. 28
    Pangloss says:

    lucia, you appear to need a little work on your reading comprehension.

    If the question is, could involuntary sterilization of the mentally incapacitated be constitutional under certain circumstances?, then the SupCt has already answered that question in the affirmative. That does not address your hypothetical. State mandated abortion is completely unknown in our nation’s history, and I trust you’d agree is obviously more invasive than even sterilization and more problematic under the 4th and 1st Amendments.

    But your romantic belief in the vitality and substance of the Ninth Amendment is rather charming.

  29. 29
    lucia says:

    Pangloss… I understood perfectly that you said the State supreme court affirmed that bodily invasive procedures were permitted in certain circumstances. I an understood you perfectly when you implied that bodily invasive procedures were unprecedented in our history. I also noticed that abortion was mentioined parenthetically, as indicated by the parentheses!

    I am sure that when you claim that abortion is less invasive than sterlization, you are forgetting that in the case of females the method of stelization was hysterectomy. You are wrong when you trust me to agree that hysterectomy is less invasive than abortion. And I do not see how forced hysterectomy is less problematic under the 1st, 4th or 14th amendments.

    As to this:
    But your romantic belief in the vitality and substance of the Ninth Amendment is rather charming.
    I am not sure what you mean to imply by this. However, the 9th amendment is contained in the constitution. Possibly, you could explain your unromatic view as to the meaning and substance of this amendment?

  30. 30
    Pangloss says:

    lucia, your understanding of biology is as lacking as of constitutional law in this matter. The procedure under review in Buck was not hysterectomy but salpingectomy, the cutting of a fallopian tube.

    But it appears that you do indeed believe that w/o the Griswold-Roe line, there is no way to read the 1st and 4th Amendments as rendering your hypo unconstitutional. How curious. I disagree, natch. I believe one can construct an argument against Buck w/o relying on penumbras and emanations. After all, the state is the actor in Buck and in your scenario — a marked difference from Roe and one that implicates the 4th amendment.

    OTOH, even with Roe in place, there are no guarantees. Your little hypo is constructed in a virtual vacuum. What is the legis. purpose for the hypothetical statute? Eugenics? Population control? I’m sure that the Supremes could find a way for the “felt need” of the state to be sanctioned even if strict scrutiny were applied. (After all, this bench just upheld an affirmative action scheme, even while purportedly applying a strict scrutiny anaylsis.)

    That is the difference between our views. You are never really secure because you gladly give over your freedom to a court that reads the constitution as “living” and treats the text and history as secondary. There’s no reason for an amendment process in your world — the court does the amending (as it has been doing). I prefer the contrary.

  31. 31
    Pangloss says:

    “Possibly, you could explain your unromatic view as to the meaning and substance of this amendment?”

    My unromantic view is the realistic view: the SupCt has rarely if ever relied on the Ninth Amendment as meaning anything in particular. They sometimes just trot it out in a litany of amendments or it occasionally pops up like a nutty aunt in a concurring justice’s opinion, but that’s about it.

    So there is a kind of naive charm to your continued bandying it about as tho’ it were the source of your right to do everything from not wearing a hat to having an abortion.

  32. 32
    Ampersand says:

    Pangloss wrote: lucia, you appear to need a little work on your reading comprehension.

    This is one of several rude and insulting statements you’ve made. Please try and make sure that your future posts include an attitude of respect for people you disagree with (and that includes toning back on the condesending attitude).

    If you have the self-discipline to have a respectful disagreement, then I’m glad you’re posting on my blog. If you don’t, then please go away.

  33. 33
    Pangloss says:

    My apologies, Amp. I didn’t think lucia took offense though, judging from the tenor of our colloquy. I certainly wasn’t offended by her tone.

    Anyway, I thought the short rejoinder preferable the wordy. Here’s the wordy –

    In regard to this statement:

    “The practice she proposes (state mandated abortion) is bodily invasive and completely unknown in our nation’s history.”

    lucia wrote:

    “Now, you think that government mandated, bodiliy invasive procedures are completely unknown in our nation’s history? I thought before, forced sterilization was known? Make up your mind.”

    lucia’s error was to substitute the more general term “bodily invasive procedures” for the actual subject of that sentence, which was “the practice she proposes (state mandated abortion).”

    Obviously, the resulting mis-statement that “mandated, bodily invasive procedures are completely unknown in our nation’s history” has a substantially different meaning than the actual statement that “state mandated abortion … is completely unknown in our nation’s history.”

    That’s the long response. I accept that lucia’s mis-statement was merely the result of misunderstanding and not deliberate mis-reading.

  34. 34
    lucia says:

    I want to comment on several points:
    1) Is it anhistory to point out that “in the case of females, the procedure was hysterectomy”? (I used “females” as opposed to Buck? )

    2) Is it reasonable to characterize the ninth amendment as something that “occasionally pops up like a nutty aunt in a concurring justice’s opinion “?

    3) Was abortion regulated during the early decades of our nation’s existance.

    4) I will leave it to others whether your editing your sentence to lift “abortion” from its parenthetical clause and to remove “is bodily invasive” substantially changes your original meaning.

    _____
    Hysterectomy

    You are correct that the procedure was not hysterectomy in Buck’s case. However, the procedure used to sterlize females was sometimes hysterectomy. The court would have been aware of this while ruling.

    You can read more about
    Oregon’s program.

    I was sloppy and left out the word “sometimes”. That omission is my fault; the omission had nothing to do with failure to understand biology or Buck or biology.
    -
    As to your “nutty aunt” theory of the 9th amendment.

    I am aware that Supreme Court rarely invokes the 9th amendment.

    I am also aware that the Senate often asks Candidates for the high court their position on this question. Presumably, the US Senate takes an unromatic view about the substance of this amendment. Possibly, they don’t take the “nutty aunt” view of this amendment.

    When you say this:
    nutty aunt in a concurring justice’s opinion, but that’s about it

    You must have been be unware that the 9th amendment was trotted out Justice Douglas in who wrote the opinion of the court in Griswold v. Connecticut.

    You may read more here. I will quote this part of the discussion:
    The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

    Justice Goldberg also “trotted it out” in his concurring opinion. You will find these words in his multipage discussion:
    To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . .

    Yes. I will bandy the ninth amendment about and suggest the interpretation that has been advanced by the US Supreme Court, and which was the interpretation advanced by James Madison. And yes, it was the interpretation on the gentlemen of the first congress who discused our right to wear hats. (I’m sorry if you feel this discussion was beneath them, but they discussed it! )

    — Abortion Circa 1790-1820
    You make this claim about abortion history:
    while the institution of abortion, which was commonly proscribed and regulated in the early decades of our republic, would not.

    I’m not entirely sure what you mean by “commonly proscribed and regulated in the early decades”.

    Abortion was not regulated in 1789 when the founders wrote the bill of rights.

    The first abortion laws was enacted in 1821. See also PPCW In 1821, Connecticut made it illegal to administer poison to a woman after the 4th month of pregnancy. Surgical abortions were a thriving procedure in 1840. The drive to criminalize abortion itself began in 1856.

  35. 35
    Pangloss says:

    Thank you, lucia, for going to such lengths to prove my point. It appears we are in agreement as to the place of the Ninth Amendment in Constitutional jurisprudence. My full “nutty aunt” reference was as follows:

    “They sometimes just trot it out in a litany of amendments or it occasionally pops up like a nutty aunt in a concurring justice’s opinion, but that’s about it.”

    In response you cite Douglas’s opinion for the Court and Goldberg’s concurrence in Griswold. They are perfect illustrations of my point.

    If you’ve read the case, you know that it is the prototypical penumbras-and-emanations decision. Douglas trots out a handful of amendments in support of his cause — the 1st, 3rd, 4th, 5th, and, indeed, the 9th, but none of them exactly form the basis for the court’s decision, or all of them do, depending on your constitutional viewpoint.

    That didn’t sit well w/Goldberg, who wanted the court to rely more explicitly on the Ninth, which a majority would not do, so he wrote his concurrence.

    So there you have it, the Ninth among a litany of amendments, plus a concurrence, all in one case.

    You won’t find much support for Goldberg’s position in subsequent cases. The problem with the Ninth is that if you take the position that it has some substantive force, then it easily becomes a vessel to be filled with whatever prevailing view of “rights” are at any given time. Justice Black got it right, in my opinion. Goldberg’s notions would have been an extraordinary power grab by the Court, which in any event has not shown any shyness about grabbing power since.

  36. 36
    Pangloss says:

    “Abortion was not regulated in 1789 when the founders wrote the bill of rights.
    The first abortion laws was enacted in 1821.”

    You (and your source) cite only positive law and overlook common law, which was far more prevalent in the early years of the republic. And personally, I wouldn’t rely on PPFA for an unbiased historical record re abortion law.

  37. 37
    Raznor says:

    So, if the ninth amendment in unsubstantive then why was it written? Did the founders write 8 amendments when Adams just got up and shouted, “Whooooooot! Man, we are on a roll here. Let’s come up with a couple more amendments to add to this sucka!”

  38. 38
    Pangloss says:

    Interesting question, raznor. Untold barrels of law review ink have been spilled on theories on how Ninth Amendment should be given life. Law school profs love this stuff.

    Anyway, Justice Black offers the prevailing historical view in his Griswold dissent. The Ninth is intended to limit the powers of the federal governrment. Some framers were concerned that once you start enumerating certain rights, you can’t list ‘em all, and that the Fed. gov’t might consequently argue that anything not listed was automatically within the scope of the power of the Feds.

    So lucia’s half right in looking to the Ninth as a source of unenumerated rights. Of course the irony is that she (and many others) seek to use it to expand, not limit, the powers of the federal government. (Black also notes this.) The problem is, all by itself, the Ninth’s of little use, which is why it’s often tacked on to some other argument when some justice professes to have discerned some heretofore unrecognized “right” in the constitution.

  39. 39
    Ampersand says:

    You (and your source) cite only positive law and overlook common law, which was far more prevalent in the early years of the republic. And personally, I wouldn’t rely on PPFA for an unbiased historical record re abortion law.

    I don’t have a dog in this fight, but I think that if you’re going to criticize other people’s sources, it would be nice if you offered sources of your own (hopefully better ones than those you’re criticizing), rather than just presenting unsubstantiated “facts” about common law.

    Regarding this: The Ninth is intended to limit the powers of the federal governrment.

    But if this is so, wouldn’t the 14th amendment then put a similar limitation on the powers of the state goverments?

    Barry

  40. 40
    Ampersand says:

    On second thought, you don’t actually present any facts about common law; I inferred that you were claiming that common law forbade abortion, but you didn’t actually make any claim at all. My bad.

    Just to clarify, ARE you saying that early American common law outlawed abortion? And was it actually enforced in much of the country?

  41. 41
    Tishie says:

    This is beside the point, but when considering the following: tubal ligation, hysterectomy, childbirth, and an abortion, the latter is generally the least physically “invasive.”

  42. 42
    lucia says:

    As some may recall, I said this:
    My purpose in bringing up the 9th is to suggest that the founders who wrote that intended the bill or rights to be interpreted broadly.

    Pangloss seems to believe the interpretation I suggested is somehow inconsistent with Douglas’s opinion which, appears to me, to have been a demonstration of interpreting the bill of rights the constitution broadly. That is, the justices grouping them, and using the 9th to justify reading the rights as a group.

    She also believe Douglas’ opinion is wrong.

    I leave it to others to decide if what I suggested is more-or-less along the lines of Douglas’s opinion, or whether I pulled this romantic notion out of nowhere.

    It is true that Justice Goldberg and two other justices wished to give the 9th amendment greater force than did Douglas. That is, he believed the 9th amendment could be used to uphold a right in and of itself.

    I have also suggested that, in some hypothetical circumstance, for example, should the legislature do something outrageous like force women to undergo abortions, the 9th amendment might be read as suggested by Goldberg.

    I leave it to others to decided if I came up with this quaint idea out of my head.

    As to history:

    This is Madison’s provided this explanation of why he wrote the 9th amendment to Congress (This amendment was the “last clause of the 4th resolution at the time) ” (June 8, 1789)

    It has been objected against the bill of rights, that, by enumerating the particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill or rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentleman may see, by turning to the last clause of the 4th resolution.”

    My understanding: Madison inserted the clause which became the 9th amendment to guard against the danger that government would believe that we give up rights we had.

    Madison continues to discuss the fact that some states have found that their bills of rights have violated, and so the entire effort of writing the bill of rights may be useless. (This is discussed because some legislators wanted to get down to real work and set up the government. They saw writing a bill of rights that would not be enforced as a pointless exercise.)

    Later he suggest who will enforce the Bill of Rights:

    If they [the bill or rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner guardians of those rights; they will be an impenetrable bulwark against the assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

    (My impression is that Pangloss objects to the tribunals of justices acting as this bulwark.)

    Madison further continues that the states will provide a additional protection beside that provided by the tribunals of justice.

    (Madison went on for pages on June 8, 1789,)

    The ideas:
    1) We have rights that are not included into the list. To counter the argument that the only rights we have are those listed, he included the 9th.

    2) The courts will act as guardians for those rights. (He also thought other branches would act as guardians. He also thought there were many things the legislature has no business writing laws about.)

    3) The states will also act as guardians of rights. (Although, he admits that the states had often done a pretty lax job enforcing their own bills of rights in the past. )

    This was not an “either or” proposition: Both the states, and the courts would act. (Given the lamentations that the states overlook their role, the role of the courts was considered important.)

    It is true, that in the later Republican period, States rights advocates claimed the purpose of the 9th was to retain rights to the states and had no effect. It is not clear that this is what those discussing the bill of rights intended.

    In any case, that issue of ‘states right’ is somewhat moot, since the 14th amendment extends the bill of rights to the states. So, whether Madison or the founders meant the bill of rights to apply limit the states or not, the bill rights now do limit the power of the states.

    Pangloss agrees with Black in his dissenting opinion, which renders the 9th amendment meaningless. She sees the dissenting opinion as more traditional that the majority or concurring opinion.

    I on the other hand agree with
    Chief Justice Marshall who insisted that every clause in the constitution must have an effect. As he said in Marbury v. Madison 1803:

    “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.”

    Black’s dissenting interpretation of the 9th amendment renders the 9th amendment without effect.

    I believe that interpretation violates a very longstanding tradition.

  43. 43
    Raznor says:

    I hate to start arguing things that the poster admits are tangent, but it seems to me that coerced abortions are at least as invasive as coerced childbirth. The physical trauma of childbirth is doubtless greater than the physical trauma of abortion (provided said abortion is performed safely), but the emotional trauma would be just as bad, and it’s still saying that women don’t have the right to decide what to do with their own bodies.

    Just my 5 forints.

  44. 44
    Raznor says:

    damn cross-posted with lucia. Fortunately we discussed completely different things, but I should add my applause and woot woot to lucia’s commentary.

  45. 45
    Rad Geek says:

    A few notes from the road (the March, by the way, was awesome: the largest march at American history, with even the lowball police estimates placing the crowd at over 800,000 and organizer estimates puttig it at 1.15 MILLION PEOPLE (!!!)).

    On the argument for court decisions defending abortion rights: I notice that Pangloss has not yet said anything on whether or not s/he agrees with premises (1)-(3) as elaborated above. I look forward to continuing this conversation whenever Pangloss clears this issue up.

    On the history of abortion laws: Pangloss takes the following odd view concerning the history of abortion under U.S. law: “In any event, it has nothing to do with Roe, which was directly contrary to the nation’s positive law history. Every state in the union had **legislation** govering abortion. Such **statutes** were common throughtout US history to 1973″ (emphasis added). But as was pointed out, no such statutes *existed* until 1821. (If you don’t credit the PPFA’s claims about matters of historical fact you’re free to consult any social history of the 19th century in America on this point. Caroll Smith-Rosenberg’s DISORDERLY CONDUCT: VISIONS OF GENDER IN VICTORIAN AMERICA has an excellent chapter on the original anti-abortion movement in America (at the time, led mainly by the boy’s club at the American Medical Assocation). To lucia’s point I should only like to add that only 10 of the 26 states enacted statutory laws that mentioned abortion at all, and of those 10, half only regulated abortion after “quickening” (usually in the fourth or fifth month of pregnancy). The drive for plain criminalization of abortion (which is what Roe overturned–not “regulation”) did not begin until the late 1850s, and the regime of state abortion laws that were repealed under Roe was put in place largely between 1860 and 1880.

    Pangloss then goes on to complain: “You (and your source) cite only positive law and overlook common law, which was far more prevalent in the early years of the republic.”

    It’s hard to see why Pangloss blames this on lucia, since it was s/he who began the discussion making a claim (inaccurately) about *statutes*, thus excluding the common law. However, it certainly is worth noting what the common law said; and the well established precedent on the matter (again, Smith-Rosenberg’s work is a good source here) did not regulate abortion until “quickening” either.

    (As it happens, neither modern anti-abortion nor modern pro-choice advocates are likely to be much pleased with abortion law, or the lack thereof, prior to the latter half of the 19th century. Strangely enough, people in those times did not think of abortion in the same terms that we think of it today, and neither feminist pro-choice arguments, nor anti-abortion fetal life arguments, would have connected particularly well with the way they thought about women, their bodies, the fetuses they carried, etc. What a shocker.)

    Now, of course this bit of legal history by itself proves nothing. There were many changes in American law and life between 1860 and 1880, some of them revolutionary acts of justice and others complete abominations. Whether abortion had always been regulated, sometimes, or never, such questions of historical practice are surely secondary to questions of justice. But no-one is aided by an airbrushed picture of history, and I can’t find much support for the picture presented here by Pangloss.

    On constitutional law: lucia is right, of course, that the sentiments I express above about the nature of legal authority, and its relationship to human rights, agrees in important respects with the work of the Framers, at least in some respects. This is because the Framers typically held a liberal theory of law based on natural rights (as was typical of the time), and I hold something that sort of looks like that (certain differences between their views and mine are fairly sharp, but not very important here). The common line across the board is a notion of *natural law*–that when it comes to fundamental rights, no government can *make* or *unmake* the law; they can only *recognize* or *fail to recognize* the law that already exists. (The reason being, roughly, that authority to make or unmake laws can only come from the consent of the governed, and that violating natural rights just is presuming to “govern” against the consent of one’s victims–thus ipso facto illegitimate.)

    I also must say that I find Pangloss’s “unromantic” view of the 9th Amendment rather puzzling: for someone who criticizes the tendency to claim that the law means whatever the Court wants it to mean, it is rather odd to go on to run down the force of the 9th Amendment by saying that “My unromantic view is the realistic view: the SupCt has rarely if ever relied on the Ninth Amendment as meaning anything in particular. They sometimes just trot it out in a litany of amendments or it occasionally pops up like a nutty aunt in a concurring justice’s opinion, but that’s about it.” Surely the issue is what the Ninth Amendment says, not whether or not the august justices of the Supreme Court make much use of it…

  46. 46
    Pangloss says:

    so much here, so little time.

    Rad, I already replied to nos. 1-7 in your little test last week. Frem your lengthy reply, it seems clear that you comprehended my answers.

    Rad contends that it is inaccurate to say that at the time of Roe, “every state in the union had legislation govering abortion. Such statutes were common throughtout US history to 1973.” This is mere quibbling. How about, “such statutes were common for 150 years”? (BTW, contra Rad, that wasn’t the quote that lucia was responding to w/PPFA’s timeline.)

    As to common law, Rad is correct that it made distinctions based on pre-scientific notions of “quickening,” ocurring in the 4th or 5th mo. That’s not to say that abortion was completely unrestricted pre-quickening. The distinction was often as between a misdemeanor and a felony.

    Rad waxes that “Surely the issue is what the Ninth Amendment says, not whether or not the august justices of the Supreme Court make much use of it…” No, Rad, that’s the romantic view. The realistic view is how the court, as well as the legislature and the states, have understood, interpreted and applied the Const throughout history.

    As for lucia’s (or amp’s?) comment that the Ninth Amend. must now apply to the states via the 14th, I don’t think you’ll any authority supporting that view. Even Goldberg distanced himself from it in Griswold.

  47. 47
    Deep River Appartment says:

    Hey Amp, something just occured to me as I reread your argument.

    The PBAB only succeeded because the anti-choicers were able to isolate it from the broader abortion issue and portray it as an act of pure satanism that many confused people would have felt uncomfortable in opposing.

    They cannot do this with abortion overall however, and can you imagine how pissed the LIBERTARIANS would be if the party tried to bush a nationwide ban? The very notion defiles the idea of state’s rights in the most blantant manner, and the significant voting block of libertarians is mainly pro-choice to begin with. Now, their wrath might not have a huge impact on the presidential, but it sure as well would be felt in all other elections, and in future political trends.

    The enemy of my enemy is sometimes my friend.

  48. 48
    Ampersand says:

    I think you’re right that, politically, early-term abortion isn’t nearly as Repulican-friendly an issue as late-term abortion. (I did a post on this once, which I think is one of my better posts on abortion issues).

    However, I’m not as sure as you are that libertarians will support democrats in droves rather than support Republicans who are banning abortion. Some libertarians will do as you describe; but there are many who will just continue to vote Republican, because in the final analysis the only things they give a damn about is tax cuts and opposing aid to the poor.

  49. 49
    Rad Geek says:

    However, I’m not as sure as you are that libertarians will support democrats in droves rather than support Republicans who are banning abortion. Some libertarians will do as you describe; but there are many who will just continue to vote Republican, because in the final analysis the only things they give a damn about is tax cuts and opposing aid to the poor.

    Amp, I know a lot of libertarians and have worked closely with them in the past, and I think this is really uncharitable. You have to distinguish the Neal Boortz wing of the party (disaffected Republicans who signed on due to misguided outreach efforts by the LP in the 1990s) from the actual libertarian hardcore who have been involved in the LP since the 1970s (not all big-L Libertarians are really well-classified as small-L libertarians.) The latter often have any number of political and cultural blind spots, limitations, and flaws, but the overwhelming majority of them have consistently opposed the war, the PATRIOT Act, the further criminalization of abortion, the War on Drugs, etc. There’s been a lot of talk, and activism, for the past 3 years on renewing the Left-Libertarian alliance that existed during the Vietnam War period, and most of the Libertarians that I know are inclining towards the Democrats at the moment if they are inclining towards any major party candidate at all.

    As for whether the disaffected Republican wing or the hardcore libertarian wing makes up the numerical majority of the party, I don’t know; most of the national leadership is to some degree or another in the latter camp, and much of the state leadership too, but some of the state parties are in the hands of the former. I don’t know how much the positioning of the disaffected Republican wing of the party has affected your perceptions of libertarians as a group, but one way or the other I would like to urge a more nuanced view.

  50. 50
    Jake Squid says:

    I’d like to believe what you are saying, Rad Geek. But from my observations in Oregon I find that hard to do. It sure seems like the primary, perhaps only, objective that the Oregon branch of the LP has is to reduce government to the smallest size possible & to privatize everything that it can. Maybe this doesn’t reflect the party nationally or LP members or libertarians as a whole, but what else can we go by?

  51. 51
    Rad Geek says:

    Constitutional law, again: Pangloss replies to my waxing romantic about the content of the Ninth Amendment:

    Surely the issue is what the Ninth Amendment says, not whether or not the august justices of the Supreme Court make much use of it…

    by saying:

    No, Rad, that’s the romantic view. The realistic view is how the court, as well as the legislature and the states, have understood, interpreted and applied the Const throughout history.

    I’m not sure about the use of modifiers here. Is it in fact “romantic” rather than “realistic” to say that a law means what it says? Is it “realistic” rather than “romantic” to argue that whatever people who wear particular sorts of uniforms say about a law must be true of that law? But these terminological quibbles are not entirely on point. The main thing about Pangloss’s post that baffles me is how s/he intends to reconcile it with the arguments that s/he made earlier in this thread. Pangloss, remember, objected when lucia earlier cited the Court’s reasoning connecting Roe and Goodridge (among others–e.g., Brown v. Board of Education) to the Bill of Rights. Here’s what the reply was:

    Indeed, lucia! Which is why I say thank God (if you’ll pardon the expression) those old white 18th C. men included abortion and gay marriage in the Bill of Rights. You know, those Amendments that prohibit any state from using its police powers to regulate abortion in any way during the first 2 trimesters (trimesters! now, there’s a hoary concept!), and that mandate the states to redefine “marriage” in a completely novel and heretofore unknown way!

    Now, let me dig out my copy of the Constitution and give you the numbers of those Amendments.

    Bear with me a moment…

    Hmm, they’re in here somewhere…

    So if the “realistic” view entails that the Court’s neglect of the Ninth Amendment is sufficient to gut the Ninth Amendment of any particular legal force, then why doesn’t the Court’s established precedent concerning the meaning of the other amendments in the Bill of Rights suffice for those decisions?

    Either an appeal to the plain text of an amendment can potentially supercede the positive declarations of the court on the matter or it cannot. Tertium non datur.

  52. 52
    Pangloss says:

    Rad, love your Latin, but there is a third way, as I’ve argued and as you’ve quoted — “The realistic view is how the court, as well as the legislature and the states, have understood, interpreted and applied the Const throughout history.” Doesn’t sound like a “plain text” theory, does it?

    Rad continues, “if the ‘realistic’ view entails that the Court’s neglect of the Ninth Amendment is sufficient to gut the Ninth Amendment of any particular legal force, then why doesn’t the Court’s established precedent concerning the meaning of the other amendments in the Bill of Rights suffice for those decisions?”

    Except that the Ninth has never had any particular legal force. By all means, invoke it as you please, but it’s akin to my insisting that the Constitution protects all human life from the moment of conception, a view that I can claim to support with citation to the plain text but which, of course, has no place in the history of our understanding of the meaning the Constitiution. (We’d need an amendment for my hypothetical view to prevail.)

    But I’m glad you enjoyed my sardonic exchange w/lucia.

  53. 53
    lucia says:

    Hi… I went away briefly on brief birthday celebration. I do have two comments and a question before I do a little reading (well.. and plant the tree peony my mom gave me for my birthday! ) :

    Amp said ( I think): However, I’m not as sure as you are that libertarians will There are two types of libertarians: Those who are libertarian because we are ferocious about the importance of individual liberties, and those who just don’t wanna pay taxes. Guess which I am? :)

    Ok.. I’ll admit, I’m actually an independent….

    Pangloss: Rad, love your Latin, The nuns always taught me Latin is a good thing. :)

    And now the biggie and I do want Pangloss to answer it. Pangloss said:
    Except that the Ninth has never had any particular legal force

    First, I assume you mean “never before Griswold”, since we have already discussed the fact that the 9th is used in Griswold. Could you explain why you believe this? (When providing your answer, cite traceable historic precendt or writing. Brownie points are granted for: 1) Supreme Court majority opinions prior to Grizwold.
    2)Writings by Madison after he decided that the Bill or Rights was a good thing, but before he was the president. No points granted for claims made without citing evidence. After all.. what I’m trying to find out is: Why do you think this. No citations would suggest “Just ‘cuz” or “Because Black said it.” )

  54. 54
    Deep River Appartments says:

    I just posted this as a reply on the Ms. boards, and I realized it might be pertinent here as well:

    A strange thought occurs to me.

    Two national trend-trains are on the same track, heading right for each other with the promise of an explosive collision.

    The first train is filled with teeming hordes of sex crazed men raised on porn and MTV-style “free love.”

    The second train is filled with the anti-choice zealots who will soon turn all women back into womb slaves.

    Neither of these trains are pleasant, so watching them smash into each other will be interesting. Will one destroy the other and clatter away damaged? Will they deadlock each other? Will they both be reduced to harmless spare parts?

    Either way it’s an opportunity for feminists.

  55. 55
    lucia says:

    Pangloss, pangloss, pangloss…..As for lucia’s (or amp’s?) comment that the Ninth Amend. must now apply to the states via the 14th, I don’t think you’ll any authority supporting that view. Even Goldberg distanced himself from it in Griswold.

    It was both me and Amp. Had Amp not also asked, I’d wait for you to justify the question I asked just above.

    Ok.. did Goldberg “distance” himself? And I’ll find no authority?

    Golberg did express a disagreement with the other judges, in Griswold but did not elaborate. I assume he did not do so because the quibble wasn’t important to the decision. Moreover, he had already discussed his difference of opinion at length,. So, he provided citations of opinions he had already wrote.

    In Griswold Goldberg says this:

    Although I have not accepted the view that “due process” as used in the Fourteenth Amendment incorporates all of the first eight Amendments (see my concurring opinion in Pointer v. Texas, 380 U.S. 400, 410 , and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen v. Hurley, 366 U.S. 117, 154 ),

    Ok.. let’s see what the disagreement amounts to, why don’t we?

    From Pointer v Texas. Goldberg, concuring we find::

    …..and I subscribe to the process by which fundamental guarantees of the Bill of Rights are absorbed by the Fourteenth Amendment and thereby applied to the States.

    Furthermore, I do not agree with my Brother HARLAN that once a provision of the Bill of Rights has been held applicable to the States by the Fourteenth Amendment, it does not apply to the States in full strength. Such a view would have the Fourteenth Amendment apply to the States “only a `watered-down, subjective version of the individual guarantees of the Bill of Rights.

    So.. he has a quibble with considering the Bill of Rights to be absorbed specifically into the term “due process” and he thinks the bill of rights does apply to the states. It’s just that the way he construes the 14th amendment the incorporation is stronger

    From Cohen and Hurley (Written by Brennan. Goldberg concurred.)

    I would reverse because I think that the petitioner was protected by the immunity from compulsory self-incrimination guaranteed by the Fifth Amendment, which in my view is absorbed by the Fourteenth Amendment, and therefore is secured against impairment by the States.

    So, his “disagreement” is that Goldberg thinks the bill of rights applies full strength to the States and does not rely on the two words “due process”. The other judges think there is some dilution!

    There are a few more “fine points”, for example, Goldberg cited earlier cases that used incorporation than cited by the other justices.

    I assure you.. there are plenty of authorities to suggest the bill of rights apply to the states.

  56. 56
    Pangloss says:

    lucia, a late reply: No, I do not agree that the Ninth acquired any particular legal force in Griswold. I think it’s fairly apparent (sorry, no cites here, not even to Hugo Black) that Douglas would have reached precisely the same conclusion as to the BoR’s penumbras and emanations w/o the Ninth. The Ninth’s a throw-in, and it stands for nothing in particular in Griswold. (Griswold is a fine example of a completely result-driven decision, in my view I hasten to add.)

    So, no, I have no SupCt cites for you. I would kindly suggest that the burden seems to be on you, the proponent of the Ninth’s substantive weight, to provide citations to back that up. Have you nothing other than Griswold and John Madison? I’ve never met a fan of Roe who is so devoted to arguments that seem to reach for something like ‘original intent.’

    Not that there’s anything wrong with that…

    I understand that no brownie point will be awarded.

  57. 57
    JRC says:

    Excuse me, Pangloss, but didn’t you just say more or less, “I have no citable evidence whatsoever to support my opinion, but still I scoff at your two cites, a Supreme Court Opinion and James Madison, The Father of the Consitution.”

    That’s not . . . er . . . the strongest argument I’ve ever heard, I’ve got to say.

    —JRC

  58. 58
    Pangloss says:

    Well, first of all, right — James! Madison. And second, sure, if you want to take it that way.

    If you’ve been paying attention, and if you’ve read Griswold, then you see that my “scoffing” is really simply an observation that the Court does not rely in any significant way on the Ninth. (Of course, the Court doesn’t rely on much of anything in Griswold, but that’s another argument.) Goldberg’s concurrence would have been a redundancy if the majority opinion had relied on the Ninth. Call it scoffing. That’s fine. I’ve scoffed at plenty of weak and poorly reasoned SupCt opinions in my time, incl. Griswold and Roe. But if Griswold’s the best Supreme Court support for the Ninth (and I think it is), that’s not much.

    Second, as to Madison — “father of the Constitution.” Okay. That’s a revered title, but Madison’s opinions on any given point do not have the weight of constitutional law. Sure, they can be cited for some persuasive value, but if you don’t have some precedent, historical interpretations and applications of the Ninth to particular sets of facts over the last couple of centuries, then to rely on snippets of Madison quotes from the first Congress seems a tad thin.

    You want citable evidence? To prove what — a negative? Ain’t got it. I don’t know of a SupCt case that says anything like, “Here’s what the 9th doesn’t mean.” The absence of a body of caselaw over the last 215 years giving force to Madison’s alleged views speaks much louder to my ears than Madison’s words. But that’s just me.

  59. 59
    JRC says:

    You want citable evidence? To prove what — a negative? Ain’t got it.

    Well, that would be a reasonable response, were that what I was looking for, but it’s not.

    You have a particular view of the ninth amendment.

    So does Lucia.

    She has offered two cites in defense of her interpretation, and to my mind they’re pretty fine cites.

    You have offered zero cites in support of your interpretation (which, as near as I can tell, is that the ninth amendment doesn’t mean much of anything).

    I’m not asking you to “prove a negative” by disproving Lucia’s interpretation, I’m asking you to prove a positive by offering support and evidence for your position.

    Let’s weigh the evidence on both sides and see which seems more substantial. As much as you may disagree with the court’s reasoning in Griswold or disagree with bringing Madison into it, they’re still infinitely more substantial and relevant than the ‘nothing’ you’ve offered in support of your view.

    Now, it may well be that there’s just plain not much caselaw when it comes to the 9th, and that’s fine too . . . but in the absence of much caselaw, I’ll gladly take SOME caselaw. From what there is, and from what we can determine about the state of mind of the founders, it seems like Lucia’s interpretation is pretty correct.

    —JRC

  60. 60
    lucia says:

    Thank you JRC for pointing out that I have provided evidence regarding the 9th amendment, Pangloss provides none, but instead simply scoffs at the idea that John (sic) Madison understood the Constitution.

    I will now address Pangloss recent post.

    You want citable evidence? To prove what — a negative? Ain’t got it.
    Pangloss, you mistake my motive in asking. I am trying to find out your source for “never”. Did you hear that somewhere? Read ever case at find law? Do a search? Or do you rely on Black?

    I do not think it has occurred to you that I might want to read your source. If you provide me your source, I can read it. Who knows, I might become convinced.

    However, you refuse to supply the basis for your claim, and so I cannot read it. And I cannot become convinced.

    Now to address a further part of your answer.

    So, no, I have no SupCt cites for you. I would kindly suggest that the burden seems to be on you, the proponent of the Ninth’s substantive weight, to provide citations to back that up. Have you nothing other than Griswold and John Madison?

    So, since this question involves a number of comments embedded n the question itself, I will make a bullted list.

    1. I brought up Madison’s opinion of the 9th because PMC seemed to claim that the authors’ intention, rather than the text’s literal reading, dictated our interpretation of the text. It appears disagree with PMC and consider founders meaning is important. Since the evidence of founder intent exists, I chose to provide PMC with evidence of the founder’s meaning.

      If you think PMC ‘s admiration for founders intent is delusional, your argument is with PMC. Possibly, you should have mentioned your opinion regarding PMC’s delusions when PMC was still posting.

    2. You seem to express and admiration for ancient case law. For this reason, I brought up John Marshall’s ruling in Marbury vs. Madison 1803 to indicate that we have a long tradition of not reading any phrase in the constitution to to have no effect. I simply observe that you, and Black, appear to be saying the 9th amendment has no effect. which violates a fairly highly regarded constitutional precedent.

      Moreover, since Black cited tradition as the reason for his interpretation, his violation of tradition might seem odd to many. Evidently, you do not find it odd.

    3. I do believe the burden of supporting your statement lies on you, and not me. Even if never is difficult to prove, you should cite something to support the idea that it might be true. So, I asked for some evidence.

      People have read your answer. I think they have formed hypotheses regarding the the depth of your knowledge of case law and the strength of your position regarding the 9th amendment.

    4. Although I do not think the burden of disproving what appears to be a bald claim, I will do so.

      You are correct that I am no constitutional scholar. Moreover, I have done a thorough review of the literature; I did a very scanty one. Based on a scanty, non-scholarly review, I can disprove “never” which you actually said, or even “never before Griswold” which I assumed you meant.

      All I need to do to disprove “never” is find one case before Griswold that stated the 9th amendment has an effect, right?

      SCOTUS recognized an unenumerated right, citing the 9th and 10th in 1947. (BTW: I do not believe you can find the stated “right” in the 10th without the 9th.)

      In United Public Workers v. Mitchell, 330 U.S. 75, 94 -95 (1947), upholding the Hatch Act, the Court said: ”We accept appellant’s contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. ……”

      There you have it. an unenumerated right.

    As to your comment on your grade:
    I understand that no brownie point will be awarded.
    That’s correct Pangloss. You provided no citations. No brownie points.

    Now, I think we should move on Black’s claim that the “9th” was “always” read to restrict the goverment’s powers in some non-right granting fashion.

  61. 61
    Pangloss says:

    Fair enough, lucia. To guard against out of context quoting, I should have expanded my last statement to be consistent with my earlier ones. The Ninth has never had any particular legal force except insofar as being understood to limit the power of the federal government. Again, take the very case you’re citing and read it, not just the summaries that pop up on Google.

    United Public Workers v. Mitchell concerned the constitutionality of Federal legislation restricting the political activities of federal employees (still in effect, btw). The plaintiffs attacked it on various grounds, including the 1st, 9th and 10th amends. The court majority said:

    “The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.”

    There you have the Court clearly enuncitating that the 9th and 10th limit Federal gov’t powers vs. “the states and the people.” (Goldberg, et al., would apparently move “the States” to the other side of the equation, creating a new and different equation.)

    The inquiry to be undertaken on a Ninth Amend challenge is as to “the granted power under which the action of the Union was taken.” The “Union” is of course the fed. gov’t. Goldberg, OTOH, sought to use the Ninth in support of an expansion of Fed gov’t powers.

    But, hey, this is an entertaining discussion. We’re essentially reviving the Black-Goldberg debate of 40 years ago. We can go ’round and ’round, but the fact is that Goldberg’s view of the Ninth renewed interest in it but never gained traction.

    The best evidence of that are the Court’s decisions, especially the “liberal activist” ones (for want of a better term). I’m sure you’d agree that those are the decisions that one would expect to rely most heaviliy on the Ninth Amend. and the source of new personal rights, but none of them do.

    Griswold’s most famous progeny is of course Roe. Blackmun couldn’t figure out whether the Ninth or the 14th were the source of the new right he discovered, but he and the court ultimately went with the 14th, not the 9th. Read Casey v. PP and Lawrence v. Texas — more offspring of Griswold/Roe. You’ll find no reliance on the Ninth for the rights re-affirmed (Casey) or newly discovered (Lawrence) therein. Lawrence of course overruled Bowers v. Hardwick, but the Lawrence court didn’t rely on any of Goldberg’s Ninth Amend theories (which had been explicitly cited by Blackmun and the dissenters in Bowers).

    Of course, you’re free to continue to propound theories of the possible use of the Ninth in the future because the court’s never explicitly shot down Goldberg’s theories. It’s just never really touched them, either.

    We’re in the airy realm of constititutional theory here, JRC. Here’s some free advice — don’t rely on anonymous bloggers to form your opinions one way or the other. We’re just scratching the surface here. One of the most readable and persuasive books I’ve ever read on constitutional theory is “Democracy and Distrust,” by the late John Hart Ely, a liberal, Yale Law School prof and former clerk to Chief Justice Warren. I recommend it.

  62. 62
    JRC says:

    We’re in the airy realm of constititutional theory here, JRC. Here’s some free advice — don’t rely on anonymous bloggers to form your opinions one way or the other.

    Okay.

    I’m still free to form my opinions as to he validity of their arguments based on the evidence they’ve offered, though, right? I mean, I like to be clear.

    —JRC

  63. 63
    Pangloss says:

    Cool. Amazon has “Democracy and Distrust” and you can “look inside” and read the first chapter on-line. I just re-read the first few pages for the first time in about 15 years and still get a charge out of it.

  64. 64
    lucia says:

    I’m still free to form my opinions as to he validity of their arguments based on the evidence they’ve offered, though, right? I mean, I like to be clear.

    Oh JRC… wherever did you get the idea you get to decide whose argument is better! Just read Democracy and Distrust! After all, we can be pretty sure Pangloss isn’t going to provide us any quotes or footnotes. Nor will she likely cite any case law contained in the book.

    However, maybe she’ll change.

    Of course, I make no bones about it JRC. I’m just going by stuff I read and find. I tell you what the stuff is. Occasionally, I get snarky, but, I ask, who wouldn’t?

    Pangloss says “not historical”, I cite Madison. Pangloss says “not traditional”, I find John Marshal. Pangloss says never, I find once. Pangloss says

    Back to the 9th amendment… But first: Why the 9th amendment. Why does Pangloss care enough to argue? If this is just a crack pot argument with no traction, why not just go home and have a drink?

    The 9th amendment instructs judges to consider the possibility that an individual liberty no literally described in the bill of rights is a right. Sometimes they will find one.

    When the justices find a right someone does like they complain: Activism! Pulling rights out of thin air.

    I have absolutely no clue why Pangloss thinks upholding individual liberties is expanding the federal governments power. When we have them neither the feds nor the states can infringe them. I happen to like that.

    Now, to address Pangloss’s more recent post, in which I think you will find an obvious sophistry.

    The whole text of the case I cited is provided on find law. I was aware that the court upheld the Hatch amendment and I even know why they upheld it.

    In the quote I took from the ruling, the opinion of the court expressely identified a right based on the 9th and 10th. When the court as says clearly that a right exist, and that means the think the right exists.

    Sure, they upheld the Hatch amendment despite the existence of a right. So what?

    We have all heard the classic “fire” in a crowded building, example. The example is used to explain that no right is absolute. It is not used to explain that we have no freedom of speech, or that the first amendment only limits the governments powers in some non-right granting way.

    In contrast, when a right simply does not exist, the court says: The right does not exist.

    Let’s now look at the whole paragraph from which you snipped your snippet; I have italicized the part you quoted:

    “Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolutes. The requirements of residence and age must be met. The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. 30 The powers granted by the Constitution to the [330 U.S. 75, 96] Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government.”

    I find it interesting that you chopped off the first sentence and the last one. Many rhetoric instructors suggest that the first and last sentences in a paragraph should contain the important bits. I leave it to readers to figure out whether chopping those out changed the meaning of the paragraph significantly.

    I don’t know how others will read the full paragraph, but it sure reads to me as though the court thinks
    1) The 9th and 10th grant us rights.
    2) Other parts Constitution grants the feds certain powers.
    3) The court must balance the rights against the powers.

    Ok.. you read to the copious amount of text discussing exactly how the justices balancing act to suggest to us that there the 9th and the 10th are not rights? Even though they refer to “rights reserved by the Ninth and Tenth Amendments” We’ll just have to disagree on this one!

    (BTW readers, you can go to the site, use the find function on your browser and find the paragraph before and after this text. To see what I left out!)

    -
    As to this sub snippet of your snippet to which you the allusion to how Goldberg might have read this read this text:

    “the states and the people.” (Goldberg, et al., would apparently move “the States” to the other side of the equation, creating a new and different equation.)

    I suspect Goldberg et al would point out the word state does not even appear in the Amendment IX . (The word state does appear in the X, where it appear linked with “and people” suggesting the people and the state are different entities. There is good reason to believe they are.)

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    -
    And as to this:
    But, hey, this is an entertaining discussion. We’re essentially reviving the Black-Goldberg debate of 40 years ago. We can go ’round and ’round, but the fact is that Goldberg’s view of the Ninth renewed interest in it but never gained traction.

    Oh no, never gained traction? Says who? You will see that this may surprised that in 1980 Blacknum complains about the idea having gained traction.

    The fact is that the court has constantly upheld non-enumerated rights as guaranteed in the 9th and has done so even after Goldberg wrote his opinion in Grizwold. The only quibbles I can see are :

    Does the court always say the “9th amendment” when they uphold non-enumerated rights? (Did the say “non-enumerated” or use another word”?)
    When they applied the bill of rights to the states did they require “due process”? (Since that’s the
    quibble that I read in Goldberg’s argument’s with the other justices.)
    Did they court refer to specifically to Goldberg?

    Well… no…
    But, let us look at an example of the courts upholding non-enumerated rights after Grizwold. And no.. I don’t mean Roe!

    How about this:
    RICHMOND NEWSPAPERS, INC. v. VIRGINIA, 448 U.S. 555 (1980)

    Warren Burger, with White and Steven’s joining. The court ruled “yada, yada, yada……(click link above)

    The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that accordingly no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution’s draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that because of this danger no Bill of Rights should be adopted. See, e. g., The Federalist No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October 1788, James Madison explained why he, although “in favor of a bill of rights,” had “not viewed it in an important light” up to that time: “I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted.” He went on to state that “there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.” 5 Writings of James Madison 271 (G. Hunt ed. 1904). 15

    But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable [448 U.S. 555, 580] doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. 16 The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.

    We hold that the right to attend criminal trials 17 is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and “of the press could be eviscerated.” Branzburg, 408 U.S., at 681 .

    Yep, the court found their unenumerated right buried in the wording of the 1st amendment. Based on the text, it sure sounds like they like them there unenumerated rights. (Which they call “unarticulated”.)

    Oh.. and look who we have cited here. Let’s add Thomas (aka John) Jefferson and Alexander (aka John) Hamilton to my previous list of James (aka John) Madison and John (aka John) Marshal!

    Gosh… remember back at the beginning when I said.. uhmmm.. the role of the 9th is to call us to read the bill of rights so as not to take away rights? Gosh! Who would have thunk an amendment means what it seems to mean based on a literal reading?

    Oh.. but I’m sure you will point out that the opinion, doesn’t say ” ninth amendment”. Clearly, they must be rejecting the idea of using the 9th right? After all, you Pangloss seem to be suggesting that the idea of using the ninth “never gained traction”.

    Well. Let’s look at footnote 15! (I made the footnote bold above for the convenience of the reader:

    Madison’s comments in Congress also reveal the perceived need for some sort of constitutional “saving clause,” which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined. See 1 Annals of Cong. 438-440 (1789). See also, e. g., 2 J. Story, Commentaries on the Constitution of the United States 651 (5th ed. 1891). Madison’s efforts, culminating in the Ninth Amendment, served to allay the fears of those who were concerned that expressing certain guarantees could be read as excluding others.

    Shoot. Imagine! The footnote refers to an interpretation of the 9th amendment! Amazing what I can find by just “googling” and reading summaries, eh, Pangloss?

    And whadaya know? Reading the footnote, we find that a historian writing the fifth edition of his book in 1891 thought that Madison wrote the 9th amendment to allay fears that we would lose unenumerated rights. Silly historian! Didn’t he know it has always been understood to limit federal powers and grant rights to the states?

    Oh.. but still, I suspect you Pangloss will opine that despite the fact that the justices find unarticulated rights, and provide a footnote discussing the ninth, they must be rejecting the idea that the 9th describes any right at all.

    Well. Blacknum points out they are using the 9th, yada, yada and the penumbra doctrine. You say the idea using the 9th never gained traction?

    ” The plurality turns to other possible constitutional sources and invokes a veritable potpourri of them – the Speech Clause of the First Amendment, the Press Clause, the Assembly Clause, the Ninth Amendment, and a cluster of penumbral guarantees recognized in past decisions.”
    (I have a quibble with Blacknum. The plurality says they say they are finding the unarticulated right in the first amendment, not a pot-pourri of amendments! )

    Granted, Blacknum doesn’t like them to use that doctrine and calls it a “pot-pouri” but since he laments that the idea gained traction, I assume that he thinks it gained traction.

    What does Blacknum actually rule in his opinion? Blacknum concurs with the majority, but bases his opinion, he says, on the 1st alone. He just think literal reading of the 1st amendment guarantees public access to trials. Hmmmm….

    The first amendment says this:

    Amendment I
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    hmmm…. for that matter. You kinda gotta wonder….

    Blacknum doesn’t believe in unenumerated rights? He believes in only granting enumerated rights? Let me find the right to “public access to trials”…. let me see…..

    Pangloss: What is the difference between finding an “uninumerated right based on the 9th amendment” and just making one up because you felt like it?

    Is the first when you admit you are finding an unenumerated right and base finding it on the text of the constitution (as the plurality did), and the second when you see and recognize the right but pretend it’s enumerated?

  65. 65
    Pangloss says:

    “Oh JRC… wherever did you get the idea you get to decide whose argument is better! Just read Democracy and Distrust! After all, we can be pretty sure Pangloss isn’t going to provide us any quotes or footnotes. Nor will she likely cite any case law contained in the book.”

    Personally, I couldn’t care less who JRC or anyone else declares the winner of this increasingly pedantic thread. I gladly concede the blogger’s crown for scoring debating points to lucia. All I know is that she seems to have expended a ton of verbiage in a vain attempt to score points against a rhetorical flourish (that Goldberg’s view of the Ninth ‘never gained traction’), rather than addressing my arguments.

    lucia wanted cites; I gave her cites. None of the “right to privacy” cases commonly considered Griswold’s progeny rely on the Ninth to reach their holdings, and those are the very cases where you’d most expect to find a Court majority sympathetic to Goldberg’s views. lucia wanted to “read” the source of my views and be “convinced.” I pointed her to a classic text on Const. theory and judicial review that I read 15 years ago, and the best she can do is sneer that I didn’t give her a quote from it. (Note to lucia: not everything’s on the internet, and even if it were, I wouldn’t try to provide a pithy soundbite from a great book on constitutional theory. Turn off your computer, open up your purse, and go buy the book — or don’t. Whatever.)

    BTW (and I’ll try to keep this concise), Richmond Newspapers, as lucia has noted, is a plurality opinion. (Plurality opinions were a bane of the Burger court, and Rehnquist has tried to avoid similar potholes, w/ltd. success.) As any student of the SupCt knows, a plurality opinion does not have the precedential force of a majority opinion, for the simple fact that it does not represent the view of a Court majority. Because a majority could only agree on the result, but not on the theory to reach that result (which is what we care about), we are left with the fragmented views of the majority. The plurality opinion that lucia cites gained exactly 3 votes — coincidentally, the same number of justices who signed on to Goldberg’s concurrence in Griswold. Richmond is a 7-1 case, however, and the only thing that the majority seems to agree on is that the right to a public trial is guaranteed by the 1st Amendment. Hardly an example of Goldberg’s views gaining traction.

  66. 66
    lucia says:

    It appears we have three quibbles… and I suspect we can drop this after this post. (Unless you don’t want to do so. I think it is clear that I have time on my hands. Evidently, so do you.)

    1. First the major argument is about about the 9th amendment.
    What does it mean? What has it always meant? Has it always meant something (which I claim) or simply been a limitation on states rights. (as you seem to claim)

    I have not claimed that the ninth must mean what “Goldberg” meant. I said and quoted to remind you:

    My purpose in bringing up the 9th is to suggest that the founders who wrote that intended the bill or rights to be interpreted broadly.

    My impression is that you believe I am wrong. You also claim this:
    Anyway, Justice Black offers the prevailing historical view in his Griswold dissent. The Ninth is intended to limit the powers of the federal governrment

    2. The second argument seems to be about how to argue.

    3. Finally, is it worth bothering discussing this?

    I’ll adress 3, then 1,and finally 2. (I doubt anyone will read as far as 2! :0!
    =========================================
    As to 3: If you don’t think it’s worth discussing, then don’t.

    It’s no skin off my nose, Amp’s nose or anyone else’s nose. It’s a blog. Everyone reading knows that it’s possible no one is reading what they post. Possibly no one will respond. That’s blogs!

    ===========================================
    As to the first argument about the meaning of the 9th amendment. I believe that is the substantive one. For this reason, I will first address your claim that Black’s idea and the supposed prevailing historical view of the ninth.

    Your claim appears to be absolute hooey.

    You have provided no claim to support your view. I have seen no evidence anywhere to support the Black’s claim in Grizwold.

    The lack of evidence by itself would be not immediately convince me that his claim, shared by you, was hooey.

    To decide, I read the Grizwold opinion itself. Stewart and Black provided a totally defective citation for their claim to historical interpret the 9th amendment. They provide U.S. v. Darby 1941.

    Because these things are on the web, it is easy enough to click the link and read Darby.

    I clicked: Darby does not discuss the 9th amendment, it discusses the 10th. No one arguing in Darby even even pretends to discuss the 9th.

    For the convenience of the few readers who may still be reading (and I suspect it may be no-one) I quote the citation Stewart and Black provided to buttress their claim for their historical”understanding of the 9th amendment:

    Our conclusion is unaffected by the Tenth Amendment which provides: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the [312 U.S. 100, 124] States, are reserved to the States respectively, or to the people’. The amendment states but a truism that all is retained which has not been surrendered.

    Those who fear I am editing unfairly can visit findlaw and find Darby.

    Surely, if history always interpreted the 9th the way Pagloss, Black, and Stewart wish it had been interpreted, they could have found a quote or citation discussing how that the ninth was intepreted their way at least once by someone!

    mabye a quote from founding father? A dissenting SCOTUS opinion by at least one justice? A scholarly book? Scribbling from the border of a book in John Adam’s library?

    Let us turn to my contention, which I believe was fairly modest:

    My purpose in bringing up the 9th is to suggest that the founders who wrote that intended the bill or rights to be interpreted broadly.

    I have been providing evidence to support it.
    I believe I have shown:

    1) Founding Fathers intention was to ensure that people retained rights not enumerated.
    2) The clear textual reading of the right suggests it means the people retain unenumerated rights.
    3) This, suggests that, barring precendent to show the amendment was meaningless, the court believe the amendment means people retain unenumerated rights.
    4) I have shown that SCOTUS read the 9th to ensure that people retained unenuerated rights before Grizwold, in Grizwold and after Grizwold. These rights are not disputed. So what if the unenumerated right is for the press to access a trial and not abortion? To f ind it disproves your contention that it has always been read the way you say it has.

    You wish to see the argument as a narrow one about Goldberg being right or wrong in his interpretation. You seem to hate Goldberg and keep bringing up snide remarks about Goldberg.

    Neverthless, I want to point out that although I comment on your remarks about Goldberg, as the touch on my points about the 9th, my position is not about whether Goldberg was right or wrong. It is about the meaning of the 9th amendment.

    Absent any evidence on your part to support your contention:
    The Ninth is intended to limit the powers of the federal governrment

    I say “hooey”.
    ===========================================

    As to the second argument, it seems to be about how to argue. I would not discuss this, except, as you can see, I do have time on my hands. It amuses me to discuss it.

    You now seem to think your exaggerations (“always”, “never”) , distortions ( eg. taking quotes so out of context as to distort all meaning), and snide remarks are “rhetorical flourishes”.

    You imply someone addressing them is acting “vainly”. You complain that my response is too long! You complain that my response based on information from “the web”, as though the fact that the supreme court cases are listed at findlaw somehow diminishes their importance to an argument about the meaing of an amendment.

    You complain that I sneer. You complain that I don’t address your argument.

    If your “rhetorical flourished” end up communicating something entirely different from what you wish to argue, I suggest you remove the flourishes and clarify your argument. Moreover, avoid making an overly broad argument and then insist people should understand you meant something much narrower and less indefensible.

    Avoid using the they are just”rhetorical flourishes” defense after someone has pointed out that your wildly overly broad statements are hooey.

    If you object to my providing fuller quotes from Supreme Court opinions after you snip three sentences you took from the case I cited in the first place, I suggest you avoid extracting sentences wildly out of context and then providing bizarre interpretation.

    Otherwise, I am forced to provide the full context in responding and discuss the interpretation.

    If you object to someone addressing every tangential issue you brought up, then don’t bring the tangential issues up.

    If you object to what you perceive as sneering at you, I suggest you not arrive to a thread sneering at others your first post ( See April 23 which included the very scholarly word “sucks”. )

    That post appeared before I even arrived at this thread.

    I also suggest you avoid embedding errors into your sneers, as these errors beg for response.

    Also, avoid preface your sophistry tricks of quoting out of context with things like this:
    Again, take the very case you’re citing and read it, not just the summaries that pop up on Google.

    Might I add that if you begin by making snide remarks about people providing cursory research, that you should avoidcomplaining that their responses are thorough and based on Supreme Court opinions? (Taken from., horrors, THE WEB!)

    I would also like to add that I that I thought I was “joking” not sneering about your book reference.

    As it happened, I thought it was pretty funny that you recommended the book one, JRC asked you a rhetorical questoin and then you reposted recommendation recommendation again in response to JRC’s question about making up his own mind!

    I’m not sure how JRC took your repeated suggestion, but lets just say it sounded to me like you were suggesting that he should *not* make up his own mind, but should rely on your recommended references.

    I can see however, how my joke might be taken as a sneer.

    As to reading books, I happen to get a charge out of:

    “Creating the Bill of Rights” by Veit, Bowling and Bickford, (From which I quoted stuff by Madison and recounted the debate about the “wearing of hats”) and

    Original Intent and the Framers of the Constittion by Levy (1988)

    That said, I suspect that both you and JRC know there are a lot of good books at the library! It is cheaper.

  67. 67
    Jake Squid says:

    I, for one, am still reading. I’m learning a whole lot here so I don’t mind if the two of you continue on.

  68. 68
    Pangloss says:

    I’m tempted to ignore lucia’s last post as simply more of the same, i.e., yet another silly tangent, but she makes so many errors that it may perhaps be instructive to shine a little light on them.

    lucia again misreads the plain language of SupCt opinions, claiming that “Stewart and Black [in Griswold] provided a totally defective citation for their claim to historical interpret the 9th amendment. They provide U.S. v. Darby 1941.”

    First, “Stewart and Black” don’t cite to Darby. Only Stewart does. Black joined Stewart’s dissenting opinion, just as Stewart joined Black’s, but each opinion is properly described only as their own. I’ve only discussed Black’s dissent, but lucia is now jumping to Stewart’s (and incorrectly lumping their separate dissents together).

    Second, Darby is not a “defective” citation. It was a perfectly fine case for Stewart to cite. It was not overruled and was valid precedent.

    Third, and most important, lucia’s point seems to be that she has stumbled upon some egregious error in Stewart’s reasoning and that he stupidly or wrongly cited to Darby as a Ninth Amdt case. But lucia has manifestly misunderstood and misconstrued Stewart’s opinion.

    Stewart didn’t cite Darby as a Ninth Amdt. case. He cited it as a Tenth Amdt case, which it precisely is, as lucia so breathlessly informs us. The relevant quote from Stewart’s dissent is:

    “The Ninth Amendment, like its companion the Tenth, which this Court held “states but a truism that all is retained which has not been surrendered,” United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States.”

    It is obvious that Stewart is citing Darby as support for the modifying clause, “which this Court held ‘states but a truism that all is retained which has not been surrendered,’” and that that clause modifies Stewart’s reference to the Tenth Amdt, which immediately precedes the clause. No news there, lucia, just another dead-end tangent. (If she wishes to argue that Stewart was wrong to link our understanding of the Tenth to our understanding of the Ninth, well, that would be yet another novel turn by lucia…)

    lucia also protests, “You wish to see the argument as a narrow one about Goldberg being right or wrong in his interpretation. You seem to hate Goldberg and keep bringing up snide remarks about Goldberg.”

    lucia seems to forget that it was she who turned the discussion to Goldberg, after she’d proposed that the Ninth could be the source of such new found rights as a “right to marry” and a “right to education.” When I dismissed the Ninth as a “nutty aunt,” popping up in the occasional SupCt concurrence or dissent, lucia set out to prove me wrong, starting with Goldberg’s concurrence in Griswold. She now complains that I’m obsessed with Goldberg… Nice try, lucia.

    So far, lucia has proven my point over and over. Perhaps we can now stipulate that the Court has never adopted her theory of the Ninth as a source of new and heretofore unknown rights (a theory that is of course closely associated with its greatest judicial champion, Arthur Goldberg).

    lucia says, “I’m not sure how JRC took your repeated suggestion [re Democracy and Distrust], but lets just say it sounded to me like you were suggesting that he should *not* make up his own mind, but should rely on your recommended references.”

    I remind lucia that this is a blog. Just because one post follows another does not make it a response. I did not respond to JRC’s 2nd post. The post you refer to was just a continuation of my previous post.

    BTW, I haven’t distanced myself from any of my “rhetorical flourishes.” I don’t see the Ninth as some open-ended source of new rights for the Court to invent or discover as the basis for striking down legislation. lucia’s (and Goldberg’s) view of the Ninth never gained any traction on the Court. Yes, Goldberg revived interest in the Ninth back in the 60s, but, as I’ve pointed out, it’s never provided the basis for any of the SupCt’s newly discovered rights since then.

    And, to bring this discussion back to its original point, it is my hope that the Ninth is never used as a limitless source of new rights, as such an interpretation would represent a wholesale usurpation of the political process by the Court.

  69. 69
    Jake Squid says:

    I may be getting lost here but I have a few questions for Pangloss.

    1)What do you believe that the 9th ammendment does?
    2)What do you believe the 9th means?
    3)What do you believe was the purpose for writing & ratifying the 9th ammendment?
    4)Has the SCOTUS ever cited the 9th ammendment & what do you see their interpertation of it to be?

    Thanks

  70. 70
    lucia says:

    I would like to preface my response to Pangloss with a comment by Ely from “Democracy and Distrust”.

    “In fact, the conclusion that the Ninth Amendment was intended to signal the existence of federal constitutional rights beyond those specifically enumerated in the Constitution is the only conclusion it’s language seems comfortably able to support”.

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