Justice Scalia: Constitution silent on abortion
UPDATE 7/21, 3:50a: Providing context to Scalia’s statement below helps. Here is what he said just prior:
My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice.
Some states prohibited it, some states didn’t. What Roe v. Wade – Wade said was that no state can prohibit it. That is simply not in the Constitution. It was one of those many things – most things in the world – left to democratic choice. And – and the court does – does not do democracy a favor when it takes an issue out of democratic choice.
7/21 2a: Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law.
I reject that argument just as I reject the other one. The Constitution in fact, says nothing at all about the subject. It is left to democratic choice.
Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.
~ Supreme Court Justice Antonin Scalia explaining his Catholic faith and his position on the constitutionality of abortion to CNN’s Piers Morgan, via MRC TV, July 18
Jill Stanek is a nurse turned speaker, columnist and blogger, a national figure in the effort to protect both preborn and postborn innocent human life.
Prior to Roe v. Wade, different states had different laws regarding abortion with some being very restrictive and others quite lenient. Columnist Mona Charen opposes abortion and believes it should again be left back to individual states to decide.
By the Constitution saying that no one shall be deprived of life without due process, it DOES say something about the subject, since abortion does just that. Now that we have a delusional SCOTUS and dictator president, we’re screwed.
Scalia is right – there is no mention of the right to life, or right to abortion in the Constitution, because, as was mentioned in the Declaration of Independence, the right to Life is a God-given right and the government was created by man to secure it.
If anything, abortion is an argument about Liberty. However, such arguments are a bastardization of what Liberty really means because one cannot say our relationships between relatives are enslavement.
Roe vs Wade is bad case law founded on invalid logic (circular reasoning).
All that said, I completely disagree with Scalia about democratic choice when it comes to Life. I highly doubt that if the majority said “Off with his head!” about the good Justice, he would find that result perfectly acceptable.
No, it is unacceptable to kill the innocent – which is deprivation of Life. If that’s not true, then the maniac in Aurora, Colorado did nothing wrong last night.
Read his profile here ~
http://prolifeprofiles.com/scalia
Kind of sad that he’s one of the best Justices when it comes to the abortion issue.
Every time I watch a segment of Piers Morgan (which is not often), I can’t help but come away feeling that the man is an idiot. For an interviewer, he’s really quite careless and imprecise with his words.
“Why were you so violently opposed to it?”
“The Constitution, when they framed it, they didn’t even allow women the right to vote, they gave women no rights.”
I love that Scalia didn’t let Piers get away with it.
And Scalia is right that “abortion” isn’t mentioned in the Constitution. But LIFE is. If Piers wants law to consider “changing times” then he needs to realize that times have changed and we now KNOW that LIFE is present at conception.
Actually women did have some rights. They have always enjoyed freedom of worship and the right to a trial by jury (although not to sit on a jury). Even before getting the right to vote, the position of women in the United States was not horrendous.
Men made the “women and children first” rule — because of which most women passengers survived the Titanic and most men passengers gave their lives so women and children could live.
Yeah, because Amendment 14 doesn’t say:
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”
All human beings are persons, correct? The unborn are human beings, correct?
Coward.
Andrew Ensley says:
July 20, 2012 at 12:42 pm
Yeah, because Amendment 14 doesn’t say:
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”
(Denise) If the unborn receive the “equal protection of the laws,” abortion will be legal. To outlaw it, the must be accorded superior rights due to their specific circumstances of having their natural habitat being the body of the pregnant female.
Born people have no “right” to another person’s intimate body parts although we rightly admire those who make sacrifices of their bodies so someone else may live. For example, I have a friend who donated his kidney to his father. The law didn’t require the donation but my friend was courageous and generous enough to make that donation. I would not have as high an opinion of him if he refused to make that donation.
Anyway, Andrew, the basic problem is that girls and women get pregnant who are not prepared to carry to term and give birth. I believe this is wrong. Women who get pregnant should be those who want to have babies and look forward joyfully to giving birth.
What can we do to decrease the appalling number of unplanned pregnancies?
I myself have never had an abortion or even been pregnant.
That’s not how a judicial philosophy of originalism (such as Scalia’s) works. Originalism holds that constitutional or statutory interpretation should be based on intent, not literal meaning. Because the drafters of the Fourteenth Amendment did not intend for it to apply to fetuses, an originalist interpretation would determine that it doesn’t.
Oh, Joan?
Apparently, you have a time machine or some unpublished writing stashed in your closet that says:
“We, the drafters of amendment 14, intend to specifically exclude a certain group of humans from the meaning of the word ‘person’ in amendment 14 …a qualification which we refuse to imply, infer, suggest, connote, state, or otherwise articulate in the amendment itself.”
Please, enlighten us.
Should I acknowldege the distinctions that I believe Justice Scalia has done? Yes. I think he has made some original distinctions. In my opinion, Justice Scalia has made at least two key distinctions. He has separated the issue of abortion from the issue of life. I believe that Justics Scalia, after making this disintinction, surveyed the Constitution to see if abortion is discussed within it and determined that abortion isn’t discussed in the Constitution. After determining that the Constitution did not address the issue of abortion compelled him to conclude that Roe v. Wade was not Consitutional. After doing this analysis Justice Scalia did a second examination of the Constitution for evidence of discussion of when life begins. According to him there is no determination made in the Constitution as to when life begins, therefore, he reasoned that a pro-life law could be Consititutional also. His reasoning seems to be acknowledge the unique reality of motherhood, a form of existence where the interests of two people are intimately linked in one body. I am not sure why he doesn’t follow this reasoning to the logical conclusion that new life is deserving of due process, and that abortion is illegal
Although I can understand the Justice’s reasoning I do not agree with his view that the Constitution, as it currently written, does not grant the Federal government the power to pass a law that forbids abortion, acknowledging the common sense and medically based fact that life begins at conception.
Yet, to be fair we must acknowledge that the above quote does not tell us Justice Scalia’s view on whether he thinks there should be an amendment to the Constitution which expressly identifies when life begins. In no way can I believe the website that says Justice Scalia is not pro-life. He is Catholic and not in the Pelosi/Biden/Melinda Gates way of being Catholic. I am sure he would personally support a pro-life amendment to the Constitution. If someone knows his views on amending the Constitution I would like to hear them.
Your reasoning is specious. The intent to positively bring about an outcome is plainly distinct from the lack of intent to not bring it about. Your argument is as silly as claiming that because the legislative history or written text of the Fourteenth Amendment does not explicitly foreclose the inclusion of animals (as “persons”), it therefore cannot reasonably be inferred that the Fourteenth Amendment does not extend to animals. For an originalist judicial philosophy, the entire ballgame is to figure out what the drafters of a statute, constitutional provision, or other act of law intended for it to mean and interpret it based exclusively on that. Did the authors of the Fourteenth Amendment intend for it to apply to fetuses? Obviously not. They intended for it to apply to newly-freed slaves.
It’s amazing how you fulfill the description which you apply to my argument. Animals? Seriously?
Now, I know that in the context of this website you would disagree, but normally, every free-thinking person in the U.S. would say, “Yes, a human being is a person; no exceptions.”
You suggest that the drafters only intended the 14th Amendment to apply to newly-freed slaves. No, that’s not correct. They intended it to apply to any person, just like they said, so that such a travesty would never again be possible.
The fact that you try to “prove” (without any evidence) that they specifically excluded your favorite class of humans to devalue is pathetic.
Revised…
After determining that the Constitution did not address the issue of abortion it compelled him to conclude that Roe v. Wade was not Consitutional. After doing this analysis Justice Scalia did a second examination of the Constitution for evidence of discussion of when life begins. According to him there is no determination made in the Constitution as to when life begins, therefore, he reasoned that a pro-life law could not be Consititutional also.
___
Thanks Joan. You are probably right. Justice Scalia must of have been thinking something like what you said, that the framers did not know that human life begins at conception.
____
Excellent points Andrew.
How does originalist determine the intent of the framers? I guess extensive historical knowledge is required?
Due to the fact that “originalism” is probably the fairest way to interpret the Constitution the American public should be more determined to create a pro-life Constitutional amendment. Focus should be on the pro-life amendment.
joan says:
July 20, 2012 at 4:02 pm
That’s not how a judicial philosophy of originalism (such as Scalia’s) works. Originalism holds that constitutional or statutory interpretation should be based on intent, not literal meaning. Because the drafters of the Fourteenth Amendment did not intend for it to apply to fetuses, an originalist interpretation would determine that it doesn’t.
(Denise) AND that the Constitution also does not forbid the outlawing of abortion.
“You suggest that the drafters only intended the 14th Amendment to apply to newly-freed slaves. No, that’s not correct. They intended it to apply to any person, just like they said, so that such a travesty would never again be possible.”
No, I did not suggest that the drafters intended the Fourteenth to only apply to freed slaves. Pointing out that it applies equally to people who were at the time of its ratification already legal citizens would be redundant because the Fourteenth Amendment (at least as far as an originalist analysis is concerned) does not grant any new rights not already guaranteed by the Fifth Amendment. Its primary purpose was to override Dred Scott.
“The fact that you try to “prove” (without any evidence) that they specifically excluded your favorite class of humans to devalue is pathetic.”
I really don’t know why you’re having such a hard time wrapping your mind around this. They did not specifically exclude the unborn. They didn’t have to. They intended no consideration of that particular “class” of “persons” (which has never, at any point in American history, been enfranchised) to begin with. For an originalist, this is all that matters.
Because the drafters of the Fourteenth Amendment did not intend for it to apply to fetuses, an originalist interpretation would determine that it doesn’t.
Most likely because the drafters were incapable of envisioning a society that would be cruel and stupid enough to legalize the killing of their preborn children.
Praxedes says:
July 20, 2012 at 6:25 pm
Because the drafters of the Fourteenth Amendment did not intend for it to apply to fetuses, an originalist interpretation would determine that it doesn’t.
Most likely because the drafters were incapable of envisioning a society that would be cruel and stupid enough to legalize the killing of their preborn children.
(Denise) The standard regarding pregnant women in those days was that of “quickening.” For example, a woman in the very early stages could be executed but one who was “quick with child” was supposed to have the execution stayed until delivery.
“They did not specifically exclude the unborn. They didn’t have to. They intended no consideration of that particular “class” of “persons” (which has never, at any point in American history, been enfranchised) to begin with.”
This is what you don’t get (and I can’t understand why): They intended consideration of any person. Have you seen that phrase mentioned a few times by now? Just because the amendment was motivated by acknowledging blacks as persons doesn’t mean it didn’t apply to all people. The drafters did not phrase it that way. They did not intend to. They purposefully used universal language so that any person (there goes that phrase again) would receive equal protection of the laws.
They wanted to ensure no one’s rights would be violated in a similar way ever again. Does that make sense? Can you wrap your mind around that?
If anything, abortion is an argument about Liberty. However, such arguments are a bastardization of what Liberty really means because one cannot say our relationships between relatives are enslavement.
How does that quote go? “You can not make one group more free by stripping rights from another” or something like that? I know I’ve heard something like that. Anyway, you reminded me of it with this. ;)
We needed the 14th Amendment to make sure ex-slaves had their rights, though I’m sure foreign-born visitors were already protected. It would seem that we need another amendment to clarify that those on the way to being born have not only a foreigner’s rights, but those of a citizen.
In order for a pro-life amendment to be passed, the culture needs to be radically transformed. Pro-lifers need to convince every single neighbor that they should support and want a new amendment that protects the life of the unborn. The Pro-Lifer movement needs to have a comprehensive response to the concerns that their neighbor will have for young Mothers, trapped Mothers, single Mothers, and relunctant/antagonistic/autonomous Mothers. It means setting the ground work, and increasing the amount of abstinence education done in schools. It means outspeaking and outpromoting the pro-choice perspective. The truth is important, but speaking the turth is just as important, if not more important, than knowing the truth. Infact, lies and misinformation can be characterized as truth as long as it repeated enough. Speaking the truth about the prolife position allows a Catholic to accomplish all of the spiritual works of mercy:
To instruct the ignorant;
To counsel the doubtful;
To admonish sinners;
To bear wrongs patiently;
To forgive offenceswillingly;
To comfort the afflicted;
To pray for the living and the dead.
Being pro-life allows Catholics to accomplish the corporeal works of mercy:
To feed the hungry;
To give drink to the thirsty;
To clothe the naked;
To harbour the harbourless;
To visit the sick;
To ransom the captive;
To bury the dead.
There seems to be some confusion regarding originalism. I don’t adhere to this philosophy, but I understand how it works. In trying to determine original intent, you have to look at the document in question (say, the Constitution) and all other public related works (Declaration of Independence, Federalist Papers, ect.) as well as the authors’ private documents (such as letters, journals, ect.)
The elements that people typically leave out are that you also have to consider how language has evolved, and what society was like at the time. Language changes, and to ever truly capture someone’s original intent you have to take that into account, or you end up applying modern society’s meanings and understandings to a historical document, which necessarily distorts the work.
You also have to take into account what conditions in society were like at the time. If something occurred at the time when the document was produced that was not held to be contrary to the principles in said document, under originalism it is also a distortion to go back and say that the document banned x when, in fact, it did not at the time when the document was produced.
What I would like to ask Justice Scalia is how an originalist would decide the constitutionality of a law or case that allowed the use of DNA evidence to exonerate convicted rapists and murderers. I am sure DNA was never discussed in the consitution. Surely, it is not inconsistent with the constitution to utilize the best scientific evidence to help inform the Court’s decision process. In other words, how does the Supreme Court recogniize the use of DNA and other more recent scientific evidence in criminal cases but not in the cases involving abortion? Shouldn’t we use the best scientific evidence available to help the Court decide who is a legal person?