A few notes from…
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: “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Roe overturned–not “regulation") did not begin until the late 1850s, and the regime of state abortion laws that were repealed under Roe was put in place largely between 1860 and 1880.</p>
<p>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.”</p>
<p>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.</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’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*–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.)</p>
<p>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 <strong>says</strong>, not whether or not the august justices of the Supreme Court make much use of it…</p>
Anticopyright.