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

<blockquote><p>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&#8230;</p></blockquote>
<p>by saying:</p>
<blockquote><p>No, Rad, that&#8217;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.</p></blockquote>
<p>I&#8217;m not sure about the use of modifiers here. Is it in fact &#8220;romantic&#8221; rather than &#8220;realistic&#8221; to say that a law <em>means what it says</em>? Is it &#8220;realistic&#8221; rather than &#8220;romantic&#8221; 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&#8217;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&#8217;s reasoning connecting Roe and Goodridge (among others&#8211;e.g., Brown v. Board of Education) to the Bill of Rights. Here&#8217;s what the reply was:</p>

<blockquote><p>Indeed, lucia! Which is why I say thank God (if you&#8217;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&#8217;s a hoary concept!), and that mandate the states to redefine &#8220;marriage&#8221; in a completely novel and heretofore unknown way!</p>
<p>Now, let me dig out my copy of the Constitution and give you the numbers of those Amendments.</p>
<p>Bear with me a moment&#8230;</p>
<p>Hmm, they&#8217;re in here somewhere&#8230;</p></blockquote>

<p>So if the &#8220;realistic&#8221; view entails that the Court&#8217;s neglect of the Ninth Amendment is sufficient to gut the Ninth Amendment of any particular legal force, then why doesn&#8217;t the Court&#8217;s established precedent concerning the meaning of the other amendments in the Bill of Rights suffice for <em>those</em> decisions? </p>
<p>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. <em>Tertium non datur.</em></p>

    <blockquote><p>However, I&#8217;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.</p></blockquote>
<p>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&#8217;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.</p>
<p>As for whether the disaffected Republican wing or the hardcore libertarian wing makes up the numerical majority of the party, I don&#8217;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&#8217;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.

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 (!!!)).

<p><strong>On the argument for court decisions defending abortion rights:</strong> 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.</p>

<p><strong>On the history of abortion laws:</strong> Pangloss takes the following odd view concerning the history of abortion under U.S. law: &#8220;In any event, it has nothing to do with Roe, which was directly contrary to the nation&#8217;s positive law history. Every state in the union had **legislation** govering abortion. Such **statutes** were common throughtout US history to 1973&Prime; (emphasis added). But as was pointed out, no such statutes *existed* until 1821. (If you don&#8217;t credit the PPFA&#8217;s claims about matters of historical fact you&#8217;re free to consult any social history of the 19th century in America on this point. Caroll Smith-Rosenberg&#8217;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&#8217;s club at the American Medical Assocation). To lucia&#8217;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 &#8220;quickening&#8221; (usually in the fourth or fifth month of pregnancy). The drive for plain criminalization of abortion (which is what Roe overturned&#8211;not &#8220;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.</p>

<p>Pangloss then goes on to complain: &#8220;You (and your source) cite only positive law and overlook common law, which was far more prevalent in the early years of the republic.&#8221;</p>
<p>It&#8217;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&#8217;s work is a good source here) did not regulate abortion until &#8220;quickening&#8221; either.</p>
<p>(As it happens, <em>neither</em> 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.)</p>

<p>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 <em>historical practice</em> are surely secondary to questions of <em>justice</em>. But no-one is aided by an airbrushed picture of history, and I can&#8217;t find much support for the picture presented here by Pangloss.</p>
<p><strong>On constitutional law:</strong> 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*&#8211;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 &#8220;govern&#8221; against the consent of one&#8217;s victims&#8211;thus ipso facto illegitimate.)</p>

<p>I also must say that I find Pangloss&#8217;s &#8220;unromantic&#8221; 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 &#8220;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&#8217;s opinion, but that&#8217;s about it.&#8221; Surely the issue is what the Ninth Amendment <strong>says</strong>, not whether or not the august justices of the Supreme Court make much use of it&#8230;</p>

    <p>Pangloss,</p>
<p>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.</p>

<p>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&#8217;s obviously encoded in American positive law; it has the negative feature that it&#8217;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&#8211;which is something quite different from having the brute power&#8211;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&#8217;s move along.</p>
<p>There seems to be a confusion throughout your replies concerning what it means to make something law. Obviously it is <em>not</em> enough that you write some things down on a piece of paper with &#8220;THIS IS A LAW&#8221; at the top; <em>I</em> 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 <em>made</em> by legitimate legislative authorities. But what counts as a legitimate legislative authority, and what is it for one to count as having <em>made a law</em>?</p>

<p>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&#8211;as is the case for most bills in the U.S.&#8211;a committee recommendation process followed by a majority vote of members). But <em>that</em> is not the only requirement; there is a <em>prior</em> requirement: in order for them to <em>make a law</em> 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&#8211;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.)</p>
<p>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 <em>cannot make a law</em> (no matter how hard they try) that legalizes slavery. They can write &#8220;slavery is legalized&#8221; on a piece of paper, and vote to put &#8220;THIS IS A LAW&#8221; on the top of the piece of paper, but <em>that</em> confers no legal authority on its own.</p>

<p>So far, so good; in any case you seem to have agreed with the premises. Your first cavil arises with premise (3) &#8211; that courts can only enforce the laws that have been made. (Yes, &#8220;enforce": if a judge is not trying to <em>enforce</em> 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, &amp;c., then what in the world <em>is</em> she doing? If there&#8217;s a word that will better convey the meaning&#8211;"Ruling on&#8221; the laws? &#8220;Adjudicating based on the laws"? &#8220;Recognizing&#8221; the laws?&#8211;I&#8217;ll be glad to use it.) This should, in any case, be a premise that you readily consent to, given what you&#8217;ve said so far: judges have no power to <em>legislate</em>; 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&#8217;t immediately relevant to this argument; in any case, it&#8217;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.</p>

<p>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&#8211;even if they <em>try</em> to, and <em>pass a bill</em> to do so&#8211;that legalizes slavery. If that&#8217;s so, then <em>even if the legislature has passed a bill</em> legalizing slavery there is no <em>law</em> in the United States legalizing slavery. And if courts can&#8217;t rule based on laws that haven&#8217;t been made, then any court which enforced a slavers&#8217; claim to own other people would be acting outside of its proper sphere of authority.</p>

<p>This is why &#8220;bills&#8221; was used consistently rather than &#8220;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 <em>tried</em> to make laws, but failed.</p>
<p>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&#8217;t (yet) introduced arguments in favor of this premise; and you evidently don&#8217;t agree with it. Very well; it&#8217;s a good argument to have, and one that I&#8217;ll be glad to join&#8211;at least, after I&#8217;ve gotten back from spending the weekend in DC marching in support of my answer to the question.</p>

<p>But first, I want to clear the ground of irrelevancies. <strong>Given what I have said about premises (1), (2), and (3), do you accept all three of these premises?</strong> Further, do you agree, based on the argument I&#8217;ve given, that if one accepts (as <em>I</em> do, and as many other pro-choicers do) (1)-(3) <em>and premise (4)</em> together, it entails the conclusion, (7)? If so, then that should be sufficient to show you why pro-choicers <em>think</em> that Roe-style court decisions are a perfectly legitimate means for defending abortion rights. Of course, showing why we <em>think</em> something is true is not necessarily the same thing as showing it <em>is</em> true; if premise (4) is <em>false</em>, then it ain&#8217;t good grounds for drawing any conclusions. But it <em>should</em> show you that the real meat of the issue is whether or not abortion <em>is</em> 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 &#8220;judicial activism&#8221; (or &#8220;judicial tyranny") and complaints about separation of powers simply glance past the pro-choice argument: Roe-style decisions could exceed the courts authority <em>only if</em> no argument of the sort I gave above applies, and so the debate over (4) is where the <em>real</em> action is.</p>

“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:

<p>(1) *Some* things are not proper subjects for the legislature to decide on.<br />

(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).

<p>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 &#8220;private sphere&#8221; that the justices claim to have found in the &#8220;penumbra&#8221; of the Bill of Rights; other arguments are based on, for example, the claim that abortion is justified by a woman&#8217;s right to control her own body, and thus that outlawing abortion constitutes legalized <em>slavery</em>.</p>
<p>The point of touching on these arguments is not to insist that they are sound (for what it&#8217;s worth I think the Roe argument is <em>not</em>, and the slavery argument <em>is</em>). 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 &#8220;I don&#8217;t see it!&#8221; is not nearly as reliable a procedure as talking about the argument of Roe and trying to <em>show</em> the points at which you think it is specious.)</p>

<p>People on both sides of the aisle often complain about how no argument is possible on the issue of abortion. I don&#8217;t think this is true: the problem is that people generally don&#8217;t <em>argue</em> about it at all; they merely <em>assert</em>. So, in the spirit of trying to get past this impasse, let me give you my arguments for claiming that it&#8217;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.</p>
<p>(1) No government body has the legitimate authority to legalize slavery. (premise)<br />

(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?

Hey Ampersand,

<p>Thanks for the kind words and for the blogrolling! Given how much I enjoy and admire what you do here at Alas, I&#8217;m more than a little flattered.</p>
<p>There&#8217;s no great trick to the &#8220;Older Posts&#8221; section. (I stole the idea from <a href="http://www.diveintomark.org/">Mark Pilgrim</a>; he actually just has one full post visible at any given time and the rest in abbreviated form. This makes more sense if, like Mark, you usually write a mid-length entry once every three or four days.)</p>

<p>It may be bad manners to show your templates in public, but here I go anyway. The MovableType template code I use is this:</p>
<blockquote><p>

<MTEntries lastn=”10″>
[… full entry template …]
</MTEntries>

<p>&lt;h2&gt;Older Posts&lt;/h2&gt;<br /></p>

<MTEntries offset=”10″ lastn=”10″>
<p id=”n<$MTEntryID page=”1″$>”><strong><a href=”<$MTEntryPermalink$>”><$MTEntryDate format=”GT %m/%d/%Y”$> :: <$MTEntryTitle$></a></strong> &raquo; <$MTEntryExcerpt$>

<MTEntryIfAllowComments><em>(<$MTSimpleCommentCount$> comments)</em></MTEntryIfAllowComments></p>
</MTEntries>

<p>(The MTSimpleCommentCount tag is from <a href="http://kalsey.com/2003/02/simplecomments/">an unrelated plugin</a> that I use; the rest is standard MovableType template tags.)</p></p>

<p>The lastn="N&#8221; flag makes MTEntries loop through the last N entries (inventively enough); the offset="M&#8221; flag makes it start M entries from the most recent (note that the most recent post is offset 0, <em>not</em> offset 1. That&#8217;s why offset="10&Prime; starts my &#8220;Older Posts&#8221; section off at the 11th most recent post.</p>
<p>The one downside is that the trick won&#8217;t work cleanly if you want the number posts that are shown in full to be determined by a <em>date range</em> (past 14 days or whatever) rather than by a fixed number of posts. There is probably some kind of MT-voodoo that will do this, but I don&#8217;t know it off the top of my head. (Maybe it will be fixed MovableType 3.0&#8211;and, who knows, maybe MovableType 3.0 will even be released within our lifetimes&#8230;)

I have to disagree with ANONY’s claim that:

<blockquote><p>Actually, the essence of the conservative argument against Roe claims that the issue will be return to the political process.</p></blockquote>
<p>The essence of many vocal abortion opponents&#8217; (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 <em>amending the Constitution</em> to enforce an anti-abortion position on all states are certainly <em>not</em> 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 <em>remove</em> the issue from the usual deliberations of legislatures as well as from courts.) (If they complain about &#8220;judicial tyranny&#8221; 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.)</p>

<p>Of course, there <em>are</em> some whose arguments are consistently focused on federalism and the separation of powers.</p>
<p>I also fear there is also a certain lack of imagination involved when ANONY asks:</p>
<blockquote><p>Why liberals are afraid of making their case is beyond me.</p></blockquote>
<p>I think that in many ways it&#8217;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&#8211;by definition&#8211;<em>don&#8217;t have time to wait</em> for the long run. Their body is imperiled <em>now</em>, and if you believe (as you do, if you are pro-choice) that the right to abortion is entailed by a woman&#8217;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 <em>slavery</em>. Set aside for a moment the question of whether or not this view is correct (although it <em>is</em>); 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.</p>

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.

I think bro-in-law could rake in the cash just by taking ordinary family photos and selling them to photo-frame companies. These are absolutely adorable.

Is there anything else to say, besides “Awwwwwwww”?