Abortion and the Constitution--or, my support of States Rights

Great Debates
41

[QUOTE=Telemark]
It cuts both ways, though. States could (and did) have vastly different laws relating to racial segragation, gay rights, and protections for women. Are you willing to accept that states have the right to set up those kind of laws without the interference of the Federal government?
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WhyNot’s point is correct…these things are clearly unconstitutional. In any case, you kind of make my point…there WERE Supreme Court decisions upholding certain laws that were clearly unconstitutional…my point being, we can’t always count on the Feds to do the right thing, either. So, yes, it does cut both ways. Absolutely.

Remember, a state can’t have a law that clearly violates the US Constitution…that is what the Supreme Court is for, to determine whether there is a violation. The problem is that it is sometimes pretty unclear what violates it and what doesn’t. This is why were talking about issues that are not so obvious, and leaving those to the states, because, as I said, a Court that allows that a woman has a right to choose (or, that people have a right to own guns, or whatever), can easily be replaced by a Court that will turn the logic around to the opposite POV.

42

[QUOTE=WhyNot]
Yes, until enough support is found nationwide to make a Constitutional Amendment about it, as the 14th Amendment did.

Or unless, of course, it’s written in the opening lines of the Declaration of Independance: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Catchy tune, innit?
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I thoroughly agree. The constitution is a social contract in which we agree on which rights we do and do not have. I agree that the constituion is silent on the issue of abortion. Thus it makes no sense for legislation related to this to be made at a federal level without an amendment. This is precisely why I think the Roe v. Wade decision was ill-advised at best.

If there is sufficient support to make it a constitutional amendment legalizing abortion, then I wouldn’t outright object to there being one from a legal standpoint. Similarly, if a ban has sufficient support to make it a constituional amendment. The bottom line is, neither of these proposals has a prayer, so there’s no real purpose to giving either any serious consideration

However, here we encounter an interesting paradox. We all agree that there is a universal right to life so far that someone we recognize to be human should not be killed (ie, murder should be illegal). However, there is no such statement in the constitution (to my knowledge) pertaining to the definition and punishment of this universal crime. Each state has a slightly different definition and way of punishing this sort of crime; the primary differentiation being along the punishment (ie, death penalty or no) and slightly different definition lines (eg, where does 2nd degree murder end and manslaughter begin, some states have 1st degree murder and capital murder). If something so much less controversial is handled at the state level, why can’t issues like abortion and homosexual marriage?

The bottom line is, even if it is within the constitution, I find it a disturbing trend to centralize the powers and laws away from the local governments and favoring the federal government. Laws should only be centralized to the level that they continue to fit well the needs and desires of the people.

Thus, with abortion law, I think the HIGHEST these sorts of bans/approvals should go is the state. In many places, I could imagine it not even getting that high. For instance, in a red state, I could see most counties having a ban, but perhaps a major city having it legal or, similarly for a blue state, having it legal through most of the state, and only illegal in certain rural areas.

Regardless, I think abortion is a poor example to choose for this sort of discussion because it is such a loaded issue with moral, ethical, and religious undertones. I think these sorts of issues only ever come up at the federal level because too many groups have an agendum they wish to push on everyone. How often do other issues about which the constitution is silent without those stigma come up for amendments?

Let’s take a silly one with none of those implications: Right Turn on Red (I imagine someone else could come up with a better issue about which states disagree but isn’t a loaded topic). To my knowledge, there are still some states in which this is not legal unless posted that it is, vice being legal unless posted otherwise as in most states. A huge majority of us like this law, but it just plain doesn’t make sense to make a federal amendment with about common traffic laws to include it, even though I doubt it would have much trouble passing.

43

[QUOTE=AHunter3]
But the even-more-inalienable right of a woman to decide to terminate a pregnancy is one I find more fundamental than that, see?

There are many rights more fundamental than the mere right to life based on being a person. I might feel, for instance, that I have not merely a right but a moral obligation to stop you from torturing someone, even if the only way to accomplish that is to kill you, even if the person you were torturing were not at significant risk of being killed by what you were doing to them.
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See, now you’re straying into your own personal moral code, not what we, as a nation, might universally agree on. And equating “being a fetus” to “torturing someone” is about as bad an analogy as I’ve ever heard. If a fetus is a person, he cannot be subject to arbitrary termination of life.

44

The US is a federation, not a confederation. The US did try a confederation, but it failed due to the lack of a strong federal government (Articals of Confederation) and then we all know that some states broke away from the federation to form a confederation (confederate states of America during the civil war, only to be conqured by the USA.

Perhaps the closest thing we have to a true confederation is the EU, where the nations are actually independent, but working together in some loose form.

As for abortion, it really depends on where you want ‘protected’ life to begin. If it’s at birth or after then I see a strong argument for it being left to the states. But if we decide it’s before birth, then this phrase gets in the way:

Posterity can also mean future generations, so even if we define protected human life at birth, the constitution was established to secure the blesings of liberity to future generations, which a fetus would qualify and can be federally banned IMHO.

45

[QUOTE=Revenant Threshold]
It’s not a perfectly analogous situation though, since it wouldn’t be a case of Texas being able to arrest and try me and choosing not to, but them not having that option at all. There isn’t a decision for them to make. I imagine though that that doesn’t make a difference.

Thanks for the answers, Sarahfeena and WhyNot (and Bricker).
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OK, a better example: You live in Texas, and one day you catch a burglar breaking into your car and shoot him. Under Texas law, the burglar is a varmint who needed killin’ (or so we shall assume for this example). You later move to Massachusetts, where you need to have a countersigned receipt for a $1000 contribution to your Democratic ward-heeler before you can even get a request form for permission to own a firearm (again, a slight exaggeration for the sake of the example), and most certainly can’t harm some poor misguided soul just because he’s a bit unclear on the fine details of property rights.

No, Massachusetts can’t arrest you for shooting the burglar in Texas (but if you brought your gun with you when you moved, they could go after you for the ongoing act of illegal possession).

46

[QUOTE=John Mace]
See, now you’re straying into your own personal moral code, not what we, as a nation, might universally agree on. And equating “being a fetus” to “torturing someone” is about as bad an analogy as I’ve ever heard. If a fetus is a person, he cannot be subject to arbitrary termination of life.
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Whatever. At any rate, I believe we’re in agreement that we as a nation — and we as individual citizens thereof —are best off with the decision-making authority decentralized.

I’m actually more interested in your thoughts about extending decentralization beyond just “state vs. federal”. Sure, there’s no legal framework mandating or supporting, oh I dunno, County Rights or conceptualizing the individual states as confederations of sovereign counties, but as an abstract concept, and extending the same arguments (aside from the Constitutional-precedent ones) that favor States’ rights…?

47

[QUOTE=AHunter3]
Sure, there’s no legal framework mandating or supporting, oh I dunno, County Rights or conceptualizing the individual states as confederations of sovereign counties, but as an abstract concept, and extending the same arguments (aside from the Constitutional-precedent ones) that favor States’ rights…?
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If there were, that’d interfere with states’ rights, no? :wink: There are some that operate that way, specifically Virginia; in fact, its my understanding that the US constitution is largely based on Virginia’s (correct me if I’m wrong). Of course, it introduces confusion because of whimsical differences (for instance, in one county one can conceal a knife with a blade length under 4" without a permit, but in another its 3 1/2"). However, it also introduces a significant amount of flexibility for the state and more local governments to address issues in certain parts of the state without affecting others.

Of course, specifically for small states (with relatively uniform needs and population distribution) or sparsely populated states, having further divisions would often only add further administrative overhead and unnecessary confusion. However, I think states like California and New York would benefit significantly from precisely this sort of proposal because they both have densely populated urban areas as well as large rural areas, both having very different needs such that a “one size fits all” approach to law making fits no better there than it does at a national level.