Strengthening Constitutional Self-Government

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Krauthammer and York on Giuliani on abortion

Charles Krauthammer offers an attractive gloss on the position Rudy Giuliani inarticulated at the Reagan Library. Here’s a snippet:

Democrats are pro-choice and have an abortion litmus test for judges they would nominate to the Supreme Court. Giuliani is pro-choice but has no such litmus test. The key phrase in his answer is “strict constructionist judge.” On judicial issues in general he believes in “strict constructionism,” the common conservative view that we don’t want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs.

However, one strict constructionist might look at Roe v. Wade as the constitutional travesty it is and decide to repeal it. Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so ingrained in society that it should not be overturned.

The question is whether, for Giuliani, strict constructionism is more or less important than the right to choose. Byron York is right: Giuliani has to level with the voters. Which comes first--choice or strict construction? If he can seriously and consistently give the latter answer, I might still be able to vote for him in the general election (which I’m sure matters to him immensely).

Discussions - 21 Comments

Krauthammer writes: "Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so engrained in society that it should not be overturned."

One of those rare cases where Krauthammer gets it wrong. A judge might indeed decide on the grounds described here, but he would be broadly construing society's habits and mores, not strictly construing the Constitution.

"Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so ingrained in society that it should not be overturned."

I was going to say the same thing as Melinda, but she beat me to it. If you use the last 35 years in your decision making about a Constitutional issue then you are not, by definition, a strict constructionist are you? Unless strict constructionist means something substantially different than originalist which I think is a better term. I was under the impression that the two terms are largely interchangeable, since strict construction implies that it is based on "strictly constructing" the original intent.

Sorry, but now that Giuliani, in his Houston Baptist speech today, affirms a woman's right to choose an abortion, I don't see how he can claim that he is personally against an affirmative choice in this matter. Slavery just might be a rather close analogy, here, as it never allows you to forget that one person's right to enslave another involves that other person's right not to be enslaved. So, too, should we consider the right of the unborn child to live. Has anyone asked Giuliani why he is personally against abortion? Does he ever mention that it's because another person is involved--the mother's child? Why else would he be against abortion?

Today Wall Street Journal criticized not only Rudy Giuliani but his pro-life critics. The Journal's solution is to make the abortion issue stay in the courts and out of politics. Below is the letter I sent in response to the editorial:

It is one thing for your editorial writer today to observe, rightly, that "abortion has been hijacked by the courts and thus denied the normal process of democratic compromise." It is something else again to contend that "An abortion fight will make the [Republican] party seem irrelevant to the main voter concerns, or captive to its litmus test interests." All this while attempting to rescue Rudy Giuliani from his own constitutional confusion and lambasting defenders of the unborn as "opportunistic, not to say cynical."

The nub of your attempt to neutralize the abortion issue rests with your claim that "If Mr. Giuliani means what he says [about appointing strict-construction federal judges], then in practical terms as President he could do as much to promote anti-abortion goals as any of the other GOP candidates." This amounts to saying that we can put an end to abortion on demand by removing it as an issue from Republican campaigns!

"For if Giuliani's bobbing and weaving only disqualifies him from serious consideration because he does not do it as well as your editorial writers do, then by implication those other Republican candidates who explicitly endorse reversing Roe v. Wade (to which the appointment of constitutionalist judges is the means) are guilty of contributing to "a drawn-out GOP donnybrook."

In the 1850s, Abraham Lincoln was accused by Democrats of needlessly harping on the issue of slavery expansion and recklessly criticizing those who favored it. He replied that he would stop talking about the matter when everyone else stopped talking about it. People are talking about abortion on demand because more than 45 million unborn children have been killed since 1973. Whatever the limitations unchallenged court decisions may place on political action, candidates for public office who are genuinely devoted to every person's natural rights to life, liberty and the pursuit of happiness have not only the right, but the duty, to keep talking about the "one issue" today that contradicts our nation's principles more than any other. As Lincoln once said, if slavery is not wrong, nothing is wrong. So too with abortion.

The normally clear-thinking Krauthammer is wrong to say that a strict constructionist could uphold Roe "with equal conviction" on the grounds of stare decisis. A strict constructionist might uphold Roe reluctantly, on grounds of societal or political prudence, were the issue presented squarely in a given case. So Rudy was actually half-right on the question. He would be wrong to suggest -- though I'm not sure he quite did -- that a strict constructionist can believe as a matter of principle that stare decisis always governs. If the constitutionalist (doesn't that sound better than "strict constructionist"?) intends eliminate Roe eventually, he or she would do best to approve progressively tighter restrictions on abortion. I suspect that our conservative reinforcements on the Court, Roberts and Alito, would uphold Roe AT THIS TIME -- with no "conviction" save that of political and social prudence. On both of those grounds, the proper anti-Roe strategy is to ... uh ... dismember it, not to kill it immediately.

Just noticed the brilliant coinage: "inarticulated". Well observed, well said! May I quote you?

I wish you folks would stop comparing abortion to slavery and the holocaust and step back and think about your "rights talk," and consider abortion sui generis for what it is. A strict originalist won't find a right to abortion in the Constitution, but there's nothing there either to suggest that an embryo, or even an unviable fetus have the rights you are claiming for it--you have to smuggle your seamless garment theory of life into law to make that claim, and neither the Constitution nor a majority of American citizens will grant you that. I'll admit that this is much trickier post-viability and in late term abortions. Abortion needs to be taken out of the courts, especially the Supreme Court, and be put back into contestation at more local levels, in hearts and minds, and posed to the medical profession--whether such procedures are consistent with the oaths of medical professionalism.

How do you square the non-human character of the unborn child, as you seem to understand it, with the statement "that all men are created equal?" Notice it does not say "born" equal. Humanness is present at conception. And, of course, no newborns are very human as you understand it either, as they are practically all passion and no reason. No newborn is "viable" for years. The Supreme Court forced this issue on the nation by denying personhood to the unborn child. We must restore the true understanding. Many Americans, men and women, after adoption of the 14th amendment drew the conclusion that the unborn needed protection based on its authority. That's when most state laws severely restricting abortion were adopted.

Richard, you're proving my point with your very response. 50-70 percent of all fertilized eggs naturally fail to implant in the uterine wall; do you think there are that many fully-formed souls in some limbo land? I do not. The idea of life beginning at conception is a new tradition; as I'm sure you know, quickening has a lot more going for it than conception when it comes to designating a starting point for human life. I'll afford the embryo a more special moral status than other clumps of human cells, but none of us are "made" at any one moment.

please substitute "created" for "made."

How many people die from heart attacks?

We do not say that since these people die from heart attacks we should be allowed to kill another indiscriminately.

In regards to theory of life comment ...

Crack open a human biology textbook and that should clear things up.

We aren't talking theories.

Yep, the ancient notions of when life begins is what we are currently working under and were referenced in the majority opinion of Roe v. Wade.

So, during the quickening, the woman has a baby.

Thing is, science has proven these ancient theories of life false, but we chose to ignore sound science for ... what? Garbage!

Why? Why have we done this? I don't know, but I do know that making something not human or not humnan enough to care about makes it a lot easier to kill ... a lot easier.

But, even these ancient definitions of life did not satisfy the bloodlust. Nope. Not long after Roe v. Wade, another decision came from the Black Robes on High and made it so a woman can abort not only for any reason, but at any time during pregnancy.

So, the heartbeat which can be heard as early as 8 weeks from conception, can be brutally stopped even if the only part still in the woman is the head.

Go ahead, eschew science for ancient myths. I mean, the world is still flat and the sun still revolves around the earth ... right?

While we are at it, lets hear about the chupacabra, the powers of the pyramids, the force coming from the burmuda triange.

" ... whether such procedures are consistent with the oaths of medical professionalism."

You must mean the Hippocratic Oath ... correct?

Well, let's see what the Black Robes on High thought about that oath ...

"What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?

Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory: 16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," and "in no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity."

Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A. D. 130-200) "give evidence of the violation of almost every one of its injunctions." 18 But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical conduct."

- Roe v. Wade, 410 U.S. 113 (1973)

The Oath was found to come from a small sect of Greeks who were dogmatic about the oath, yet, the oath, was generally ignored by the rest of the world.

So, the Majority Opinion is diminishing the importance of the oath historically and applying that supposed lack of importance to the world of 1973.

So, using this logic, we can comfortably say that since slavery was generally not opposed throughout history, we, today, should not oppose it or at least tolerate it.

Regarding the opinion's reference to Plato ...

It appears he is not opposed to abortion even AFTER viability ..."And we grant all this, accompanying the permission with strict orders to prevent any embryo which may come into being from seeing the light; and if any force a way to the birth, the parents must understand that the offspring of such an union cannot be maintained, and arrange accordingly."

- Plato's Republic, Section V

You could also use the section to justify polygamy and Communism.

Regarding the opinion's reference to Aristotle, it appears he, also, is not opposed to abortion after viability.

"As to the exposure and rearing of children, let there be a law that no deformed child shall live, but that on the ground of an excess in the number of children, if the established customs of the state forbid this (for in our state population has a limit), no child is to be exposed, but when couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation."

- Aristotle, Politics, Book 7

And just exactly how did Aristotle or those of his day determine when "sense or life have begun", thusly justifying abortion?

Yep, they based their theories on observations, which resulted in faulty logic.

Today, and for quite some time, we have corrected that faulty logic through basic science, but we still cling to those ancient notions for no good reason.

Yep, these are REALLY great example to be used in defence of your opinion ... yep ... really great. Please.

Sorry, I meant ...

Yep, they based their theories on observations and on mythis, which resulted in faulty logic

I don't agree with mod, but he makes some important points. Whether or not it is wrong to kill YOUR OWN child in the womb, is a different question from whether that child has a soul. Are all the aborted and miscarried babies in either Heaven or Hell (depending on your theology)? I don't know. But it would still be wrong to kill them even if they don't yet posses a soul. "Personhood" is a modern philosophical concept and invoking philosophy is generally a losing battle for conservatives. It is philosophy that is used to overcome what we instinctually know is right. Like not killing your kid. The child most definitely is progeny and belongs to someone and is someone's responsibility. That is unambiguous. That is what we should focus on.

Pro-life folks on the right are hidebound by their use of leftist rhetoric. "Rights talk" as mod calls it is of the left. If you engage the enemy on his battle-field you will loss. Why do conservatives allow themselves to get draw into the battle on the left's terms. (One obvious answer is that most rightists are really leftists by sentiment who retain a few rightist vestiges such as on abortion.)

Dan - thank you for re-articulating what I was trying to convey about the insufficiency of "rights talk."

Dale - I've done alright in biology, if I do say so myself. Ditto for philosophy. I wonder whether in your own conception of biology you're not operating from the platform that a woman is a passive vessel throughout all this pregnancy business, biding her time until someone else "delivers" her baby. The active male/ active homunculous/ passive female myth is far more pernicious than the idea of quickening. Pregnancy is, biologically speaking, hardly an innocuous condition for women, and it'd be good if you would recognize this and stop making b.s. examples of people who are susceptible to heart attacks and an embryo or fetus being analogous to a slave. A developing human has a profound dependency on its mother that just doesn't hold water in the slavery/heart attack example.

Notice that I didn't mention anything about personhood in my response. The question is, who falls under the category of "men" to whom the rights to life, liberty, and the pursuit of happiness are safeguarded. My point is that it is by no means obvious that this would logically extend to a being that doesn't yet even have the basic form or outline of a human being. Your point is that we can't and musn't draw distinctions on this continuum of life. I don't think that will hold Constitutionally.

I don't want to put words in your mouth, but I assume that you believe that mothers, based on their bodily constitution, have a duty and an obligation (yea, one that can be enforced legally) to carry their children to term. Maybe you should try to get that framed in positive law. Good luck to you.

I'm more interested in shifting this intractable debate to a different arena.

Dear Dale Michaud: apropos to comment #13: you're quite right about Blackmun's invocation of Edelstein's influential interpretation of the Hippocratic Oath. You, however, might like to read Leon Kass's "Is there a Medical Ethic?" in Toward a More Natural Science for his critique of Edelstein and presentation of an alternative interpretation of the Oath.

Never said pregnancy was innocuous, yet it is not a disease and should not be looked upon as a disaster to the woman or the family.

Regarding rights under the Constitution ...

While the Constitution is explicit about who it is supposed to cover (born in the U.S. and naturalized citizens), the courts have, at times, put others under the Constitution. So it is not a stretch to say the unborn could or should be covered, especially since we are talking about another human life and not some appendage of the woman.

The comparison to slavery is very appropriate in several ways. Slavery was referenced indirectly in the Constitution and had a long time to establish itself. Slavery even influenced the wording of the Declaration of Independece. Yet, slavery was eventually found to be not only morally reprehensible, but illegal and eventually was prohibited by the Constitution via amendment.

Today, however, people talk about how nothing could overturn abortion, a right not found in the Constitution directly or even indirectly. Abortion has been legal in the United Stated for a very short time compared to slavery, yet we tell ourselves that while slavery was in operation a lot longer than abortion, abortion can not be ended.

That is the comparison. I find it very disturbing that something not found in the Constitution can't be overturned, yet something else found in the Constitution, albeit indirectly, was. That does not make sense.

Lastly, since abortion kills human life, then the comparison to the Holocaust is also very appropriate. While I seriously doubt that most woman think of it those terms, there is no other conclusion you can come to.

Lastly, regarding you assertion we should focus on progeny instead of rights talk and all that, what do you mean?

Are you talking about those that are already born? If so, then your assertion does nothing to change the abortion arena. What it does do is change the subject entirely.

Now, if you mean that those that are aborted or could be aborted are progeny, then you are fully admitting that the unborn is another human life worthy to be considered as such. If that is so, then you are also stating that the unborn has a right to live.

It is an immutable fact that human development begins after conception. Our sciences exposed that trutht to us.

Yet, we still cling to ancient notions of when human life begins and that is truly sad.

mod, it is NOT my conception of biology ... here's a couple of examples why ...

The Carnagie Stages of Development puts the beginning of human development with the zygote. The zygote is the result of fertilization, that is conception. It should be noted that Carnagie has been studying human biology since at least the 1900s with some of its member beginning much earlier.

Dr. Mark Hill (is a Senior Lecturer in the School of Medical Sciences, Anatomy, Faculty of Medicine, and also head of the Cell Biology Laboratory) from the University of New South Wales in Australia puts the beginning of human development at the same zygote stage that Carnagie does.

By the way, that is the Carnagie Institution, Department of Embryology.

Here's another example of why what I assert about human biology is not an interpretation ...

"the answer is to be found in the works of modern human embryology and developmental biology. In these texts, we find little or nothing in the way of scientific uncertainty: "…human development begins at fertilization…" write embryologists Keith Moore and T.V. N. Persaud in The Developing Human (7th edition, 2003), the most widely used textbook on human embryology.


Some today deny the moral premise of my position, namely, that human beings possess inherent dignity and a right to life simply by virtue of their humanity. They claim that some, but not all, human beings have dignity and rights. To have such rights, they say, human beings must possess some quality or set of qualities (sentience, self-consciousness, the immediately exercisable capacity for human mental functions, etc.) that other human beings do not possess or do not yet possess, or no longer possess.

I reject the idea that human beings at certain stages of development (embryos, fetuses, infants) or in certain conditions (the severely handicapped or mentally retarded, those suffering dementia) are not "persons" who possess dignity and a right to life. And no person may legitimately be destroyed in biomedical research or for other reasons."

- Robert P. George, President's Council on Bioethics, from an NPR online article, November 22, 2005

I can start quoting Human Embryology textbooks like Mr. George has done, but what is the point?

Seriously, why? One thing I found from the years I have debated on this subject is that many people refuse to believe the truth that is staring them in the face. Basic science tells us EXACTLY when human life begins, but many purposely ignore science.

And people like to castigate me as a religious nut or a pro-life nut or a religious pro-lige zealot or whatever pathetic moniker they like to dream up, but I am not the one putting forth arguments based on faith. That, my friends, are those that are either support abortion outright or support choice.

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