CPAC: Consevatives Vote for Ron Paul

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By whom? I was only using your link. In most of the writing I've looked at, it is the means of looking at the totality of the primary sources available, like letters, papers, what the particular founder actually had to say on the topic and how that squares with the actual outcome of the document. An excellent example of this is historian Jack Rakove's Original Meanings on James Madison and the Constitution. This is one of the best books I've read on the subject:

http://www.earlyamerica.com/review/1998/rakove.html

It's such a good book, just to lay out a narrative of the Constitution, the Convention and the ratification process. And also how and if, Madison achieved his intentions at the Convention and the final document (it is surprising). I never listen to pundits on the Constitution (except for entertainment), since they are really know-nothings on the subject. I like to quote real, specific sources as well as specfic problems in looking at the "intent" of the Framers and the Constitution, rather than just vague, political talking-points. You take a book like Orginal Meanings in the context of Madison's other biographers, such as Lance Banning's, Madison, (the "Sacred Fire" is such a good read), or Drew McCoy's Last of the Founders, (informative of Madison's last days, but kind of a dull read) or Rakove's own, Madison and the Republic , and when you read these books side-by-side you start to get a feel for what a particular founder was thinking and the process it took for him to get there. But just to say, "this is what the Founders intended," without having looked at least a few of the sources, is just shallow and not very meaningful, but I'm not accusing anyone here of that.

http://www.librarything.com/work/161430
http://www.librarything.com/work/332162
http://www.librarything.com/work/91896

I'm not sure what you mean. The Federalist and Anti-Federalist Papers are a good start for looking at some of the publications that were written on the Constitution at the time.

 

Probably people not nearly as educated as you read on the topic.

Specifically, I mean the "and are too recent in the memories of most men to admit of question" bit is no longer the case.

 

Ah. I see.

 

It's actually been around for thousands of years. Nevertheless, the United States didn't have any abortion laws until the 1820s, and those laws only forbade abortion after the fourth month of pregnancy*. The founders never weighed in on abortion, so it is meaningless to talk about "founder intent" where abortion is concerned.

* Laws banning abortion after the first trimester didn't start showing up until 1880, but abortionists still practiced openly after the ban for quite some time -- juries refused to convict them.

 

Drew, with all due respect, I'd rather take Chandos's word on it than yours, since he seems much better educated on the writings of the various Founders than either you or me. I'm also quite sure he knows things that a simple Google search wouldn't be likely to bring up. Any insights, Chandos?

 

Whatever, NOG. You are again concentrating on minute details while ignoring my actual point. There is no debating that Abortion is not referred to in our Declaration of independence, Constitution, or Bill of Rights. There is no debating that the first US abortion legislation was not passed until 1820, and that that initial legislation only banned abortion prior to the "quickening*". Even if some of our founders had weighed in on abortion in their personal writings, only a fool would believe that they all held the same opinion on the matter. The age-old question therefore remains -- which founder? whose intent?

* Not the transfer of power and knowledge from one immortal to another upon beheading -- the legislation was talking about the other quickening.

 

How about the author of this:

As far as I can see, the issue of abortion lies firmly in 10th Amendment territory. Of course, it seems a lot of similar issues that the Feds have taken positions on also lie there.

 

NOG, you can argue that, but the 10th amendment no longer holds the strength it once did. Keep in mind that, when our nation was founded, the Bill of Rights applied only to Federal Statutes. States were at the time free to strip those same rights from their own residents (the institution of slavery being the most notable example) and the government ultimately came to the conclusion that this was an untenable system. Hence the passage of the 14th amendment, which changed this.

Realize that the 1973 Supreme Court decision rested its conclusions on the constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment, otherwise known as Substantive Due Process.

This, of course, is my long winded way of pointing out that by 1868, fully two-thirds of both houses of congress became convinced that the founders got the tenth amendment at least partially wrong. Our founders were not perfect. I, for one, believe that Congress was right to take away the states' ability to to strip their residents of rights guaranteed them in our Constitution. If you see things differently, feel free to explain why you think states should be allowed to do that (and why, consequently, we should repeal the 14th ammendment).

 

I'm sorry, NOG, I can't help. But I will say that considering that a few of the founders, even those in the Pantheon, had a number of illegitmate children, that they were not really that keen on abortion, at least personally (nor were they that keen on the idea of safe sex, apparently). From a citizen's point of view, I really don't know the answer.

 

Drew, I've honestly never understood how the Right to Privacy (no beef with that one) became a right to an abortion. Could you explain that?

 

Nope. I don't really get it either. Legally speaking, a fetus is not protected under the law, which is why a woman's right to privacy trumps the authority of the state to interfere with what is, legally speaking, her decision. In order to reverse Roe v Wade, the court would likely have to rule that fetuses (fetusi?) are entitled to constitutional protection. There is some precedence for this already, since the supreme court only guaranteed women the right to have abortion during the first 7 months -- when the fetus was at the time considered "viable" outside of the womb, albeit with serious medical intervention -- implying that "viability" may entitle a fetus to constitutional protection that trumps the mother's right to privacy. Theoretically, another challenge could roll that time period back somewhat, since using that standard, a fetus would now be considered "viable" outside the womb as early as 5 months.

Keep in mind that I am only grudgingly pro-choice. After the first trimester, I don't believe abortion should be legal unless the life of the mother is in danger. Before that, I'm uncomfortable with it, but all the available medical evidence I've seen seems to indicate that the fetus lacks sufficient brain function to be capable of suffering until about halfway into the second trimester. By suffering, I refer to more than merely feeling physical pain. A nervous system is all well and good, but without sufficient brain activity to process it, you are incapable of suffering.

 

Why is that, NOG?

 

Isn't the basic idea that with foetuses not being recognized as persons and thus not having any rights, they are treated as part of the mother's body, thus bearing them - or not - to term is a personal decision for her?

 

I see two problems with this. One, as you pointed out, there's nothing to prevent the Supreme Court from changing when a foetus is considered legally 'alive'. In fact, as I understand it, that is one of the prime issues in the debate. Two, I still don't see how a woman's abortion has much of anything to do with a right to privacy. The only connection I can see at all is the privacy of medical records and procedures, and the law can already violate that without batting an eye (meaning, the law bans many kinds of potential medical procedures already, so how is abortion any different).

Because the power to legalize/ban medical procedures is not granted to the Federal Government, nor banned to the States, thus the 10th Amendment reserves it for the States or the People. The 14th Amendment is all well and good (and I mean that, I agree with Drew on it), but it doesn't interfere with this, as far as I can see.

But that's nowhere in the Constitution. In order for the laws banning abortions to be ruled unconstitutional, they had to violate the Constitution. I can see the court not considering a foetus alive, thus not having rights, thus weighing the rights of the mother above that of the foetus, but it still requires that the law banning abortions violate the mother's right to something, something protected in the Constitution.

 

The national government is charged with protecting the rights of its citizens under the Constitution. This has been largely a Constitutional issue of rights and personal liberties. So I don't know what the states would have to say about it.

You can disagree with the decision, and lord knows, I've disagreed with enough of them made by the Supreme court over the years (especially this one, which is the worst bunch of political boneheads I've ever seen). Nevertheless, the ruling has stood for over 30 years, so I don't see where the problem is from a Constitutional standpoint. Anyone can challenge it anytime he chooses, or thinks he can win on the 10th Amendment.

Note: I did want to add that many in the Pro-Choice side believe that it is a violation of the 13th Amendment - under "Involuntary Servitude" section of the amendment. I'm hesitant to add this because this not a thread about abortion. There are plenty of those already on this board....

 

It is well known that I am pretty well pro-life, but IMHO the argument that itis a privacy issue is a pretty strong one. What goes on inside my body is pretty effing private, and I would imagine that many women feel the same way. I can totally see the argument as one of privacy.

Now the idea of publicly funded abortions being a privacy issue, that's another story.

 

You cannot look at the Roe v Wade decision by itself. Indeed, many of the Supreme Court decisions regarding right to privacy concern one's sexual activities, which as LKD stated, is pretty darn private. If you want to get a feel for how right to privacy got into the Roe v. Wade decision, you need to look at the precedent set by earlier SC cases, and Griswold v. Connecticut is as good a place as any to start.

 

So, the use of Marajuana is a privacy issue? The use of Crack? LSD? That's all about what goes on inside your body, after all.

Additionally, the abortion is a procedure that goes on inside a medical clinic, with a sizable portion of it happening outside of the woman's body.

My point is that it's the States' right to decide, not the Fed's, unless the Constitution says it's the Fed's or not the States'.

Oh, I understand this. I just think it was a purely political ruling that stretched the very fabric of logic to be brought into the legal realm.

I can sort of see that, except that:
1.) it was (generally) a voluntary act that caused the pregnancy and
2.) past the point of birth, there's no involuntary service required (i.e. if you don't want the child, you can give it up).

Thank you, that was very informative. I don't have a problem with the supposed 'right to privacy'. Like I said earlier, it seems a logical extension of Protection from Search and Siezure to me. What I have a problem with is:

Except that by that reasoning, any abortion law, even one banning abortion during birth would be unconstitutional, as would laws to prosecute doctor-assisted suicides or any other even pseudo-medical action taken between you and your doctor.

 

That's simply not true. You may want to read the actual Roe v. Wade decision in full. Specifically, the court ruled that late term abortions posed a serious health risk to the mother, and that states had the right to limit or outright ban abortions in the third trimester. They also said that states had the right to limit abortions in the second trimester. However, the court said that the risk to the health of getting an abortion in the first trimester was actually lower than continuing the pregnancy, and thus states had no right to intervene with a woman's decision at that time. So the only thing that Roe v. Wade authorized was first term abortions. If you read what Justice Blackmun wrote, Roe v. Wade is not as far-reaching as many claim it to be.

 

The supreme court only guaranteed abortion when the fetus was not considered viable outside of the womb. Reading between the lines, this means that the fetus is no longer considered a part of its mother's body when it becomes "viable". Taking it a step further, it could potentially be argued that, once a fetus becomes "viable", it is entitled to some basic constitutional protections.

This isn't entirely accurate. The ruling only grants women unfettered access to first-term abortions, but the state is only given authority to regulate abortion in the second trimester. They can't ban it outright.

Yes, yes, this is really just a semantic difference, but I think it is an important one.

EDIT: removed some of the stuff that Aldeth already covered.