Saturday, January 22, 2011

Women's Rights

Today is Saturday, 22 January 2011.

On this date in 1973, in Roe v. Wade, 410 U.S. 113, the Supreme Court held that privacy rights inherent in the Fourteenth Amendment gave females the right to certain abortions.

“Justice” Antonin Scalia recently claimed that there is no right to privacy literally stated in the Constitution, and that such a concept could be created only by legislation.

Interesting, isn’t it, how to-the-death, free-market capitalist fanatics so frequently believe that the State should own the conceptual apparatus of all human females? Interesting also, isn’t it, that one never hears of such a belief regarding the equivalent equipment of all human males?

Scalia is, of course, a rabid “originalist”, believing in an interpretation of the Constitution which owes much to the “thought” of Fundamentalism: only the “original intentions” of the Framers need apply. Does Scalia really imagine that the Framers intended that pasta-gorging non-Aryans such as himself should become Justices?


Anonymous Anonymous said...

Our lives are but a flash of light against the universe.

2:36 AM  
Anonymous what's all this? said...

In "The New Republic" (06.13.2004) Michael Kinsley wrote:

"Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court...(A) freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami."

Another respected scholar wrote:

"It is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result... This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment... By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values."

10:33 AM  
Anonymous rtr said...

From The Nation "Stealing the Constitution" by Garrett Epps

Answering high flown New Republic (et al) rhetoric.

You're right on track with the drumbeat about Justice Scalia and the 'Gang of Five.'

Keep 'em coming but like others have mentioned, the cartoonish caricature and blunt force trauma satire, while generally well directed, may be having a numbing effect (or worse), if persuasion is your goal.

4:57 PM  
Anonymous what's all this? said...

To rtr:

Thanks for the citation to the Epps article. Very well-conceived and well-written, although I don't agree with all found therein.

Justice Stephen Breyer's "Making Our Democracy Work: A Judge's View" and "Active Liberty: Interpreting Our Democratic Constitution" are both must-reads for those seriously thinking about the serious issues that confront our society and our Courts today.

The Epps article, and Justice Breyer's books, are quite thought-provoking and insightful. Although Justice Breyer's judicial philosophy is clearly at odds with Scalia, Thomas, et al., the tenor of his argument is unfailingly respectful, thoughtful and instructive.

The Epps article and Breyer's books are quite refreshing in light of what passes for argument from the right wing nuts, as well as the type of mindless rant which appears in HH's post (depicting Justice Scalia as a "pasta-gorging non-Aryan"). Sigh...

6:10 PM  
Anonymous rtr said...

Back to you WAT:

Thank you for the referral to the Breyer books. Of all the recent justices, his writings would be the ones that would garner the most immediate respect with me.

To me, the most important thing Epps had to say is in reference to plain speech messages to the public. The right clearly has a judicial message frame (in George Lakoff terms). Epps rightly points out that progressives seemingly have yet to recognize the necessity of framing a public dialogue around the constitution except to bemoan the fact that civil liberties are taking an unconstitutional beating and nobody is doing anything about it.

Well yes, people are doing something about it. The right is hammering away at individual liberties that afflict their world view with a coordinated and effective strategy that progressive handwringing has been unable to slow.

One of the best plain talk progressive messages I have seen regarding the Constitutional dialogue is that "The Constitution establishes our government. It is not a manual for eliminating government." It doesn't meet the Lakoff standard for creating a frame for a progressive constitutional message in that it is reactive to the already existent themes of "Government is the problem, not the solution" and its various corollaries but it is non-wonkish understandable statement that attaches at a much lower rung of Maslow's heirarchy.

I recommend "Cold Anger" by Mary Beth Rogers to HH. In my experience, indulging my rage, whether righteous or not has rarely if ever produced a salutary effect and more often than not has produced alienation - precisely the opposite result that my indulgence was seeking.

8:23 PM  
Anonymous what's all this? said...

To rtr:

Excellent thinking and writing! I urge you to review Breyer's "Making Our Democracy Work: A Judge's View" - it is riveting in that it details his judicial philosophy and how he is oftentimes at odds with his colleagues on the Court. (Of course, Justice Breyer fairly and respectfully explains those views, and lays out the nature of his disagreement with them.)

And, without saying say so, Breyer's "Active Liberty: Interpreting Our Democratic Constitution" is something of a rejoinder to Justice Scalia's 1997 manifesto entitled: "A Matter of Interpretation: Federal Courts and the Law", wherein Scalia outlines his criticism for those who argue for a more flexible and adaptive interpretation of the Constitution's text.

I don't believe that the Epps article you cited answers "high-flown rhetoric", but it certainly makes a number of salient points. For me, one of the most important things Epps wrote was:

The most important truth about the Constitution is this: it was written as a set of rules by which living people could solve their own problems, not as a 'dead hand' restricting their options. Strikingly many important questions, from the nature of the Supreme Court to the composition of the cabinet, are left to Congress. There's ample evidence in the text that the framers didn't think of themselves as peering into the future and settling all questions; instead, they wrote a document that in essence says, 'Work it out.'

And I absolutely agree with your observation that progressive hand-wringing has been unable to staunch the tide of right-wing assaults on our civil rights. Serious problems calling for, and requiring, serious thought and serious discussion. I, and other readers, surely appreciate your thoughtful and reasoned input here. Many thanks.

12:31 PM  
Anonymous HH said...

The Epps comment is spot on, but any good Originalist would have its author burnt at the stake. I'm composing observations on this is as I await news about our cocker spaniel's surgery.

2:05 PM  
Anonymous newcomer said...

Obviously, none of those posting comments here (so far) are "good Originalist(s)."

Hope all goes with your pet's surgery and recovery.

3:05 PM  
Anonymous HH said...

Thanks for the good wishes. Just heard good news and am about to post.

3:34 PM  

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