U. S. Constitution: Amendment 2, 4, 5, 9, 10, 14

  

My concern in this brief essay is the United States constitution. A wonderful essay by Roger Rosenblatt in a special Fall issue of Life Magazine (p. 9-32) forms the heart of my reflections. My concern derives from the progressive part of the Left that questions the basic goodness of the Constitution.

            Frederick Douglass called it, “a glorious liberty document.” Patrick Henry said, “The Constitution is not a document for the government to restrain the people: it is an instrument for the people to restrain the government - lest it come to dominate our lives and our interests."

            On 2nd Amendment: Most justices held that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home, and that “good cause” requirements such as the one implemented by New York are unconstitutional because they “prevent law-abiding citizens with ordinary self-defense needs from exercising” this right in public. In doing so, the high court explicitly rejected the interest-balancing approach relied upon by many lower courts when analyzing Second Amendment cases, which often results in courts upholding gun control laws under a standard known as intermediate scrutiny.

            If we go to the Fourth Amendment, it curtails any curiosity of the government about us.

            If we go to the Fifth Amendment, a remarkably sweeping declaration amounts to protection for the individual of the vast prosecutorial and condemnatory power of the state. Authors of the Constitution, themselves only recently freed subjects of a heavy-handed empire, suspected that all government were capable of the worst. They especially feared the state’s terrible power to thrown them into dungeons and forget them, to torture them into confessions, or to judge them summarily, with no charges and no witnesses, and seize their lands and possessions. This amendment is an incantation against despotism. 

            The Ninth Amendment suggests a right to privacy in that it affirms that the enumerated rights are not all the rights that citizens may have. The best-known case to interpret the amendment in this way is Roe v Wade. It legalized abortion in 1973. Though the ruling was based on the 14th amendment, in a concurring opinion, Justice Douglas called this amendment a protective mantle guarding freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. These considerations were set aside in 2022 in the opinion written by Justice Alito.

            Justice Alito, writing for the court, capsulized the many errors of Roe as follows: The court incorrectly decided Roe, but that decision was more than simply wrong. It stood on exceptionally weak grounds. Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to ‘viability’) was never raised by any party and has never been plausibly explained. “In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” Thomas wrote in his concurrence. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” The point Clarence Thomas is making is that there are other issues on which the Court has taken away the rights of democratic institutions to engage in a process of public discourse to resolve disputes, such as definition of marriage and so on.

            The Tenth Amendment reserves for the states or the people states powers not delegated by the Constitution to the federal government. During the summer of 1789, as Congress debated the amendments, Samuel Adams was so impressed that he dashed off a letter. This amendment meant that people may clearly see the distinction between federal powers and the sovereign authority belonging to the several states and the personal rights of the citizens. He believed that regulation of diverse constituencies best occurred locally. 

            The Fourteenth Amendment affirms that persons born or naturalized I the US are citizens of the US and of the state in which they reside, but further affirms that no state shall make or enforce any law that shall abridge the privileges or immunities of citizens, 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 these laws. The guideline accepted by most legal scholars is that states may grant greater rights than do the federal Bill of Rights, but never less.

            John David Davison said that prior to the Civil War amendments, Democrats asserted that the inherent rights of white men, not just property rights but all of them, required the complete denial of the rights of black Americans. Today, Democrats assert that the inherent rights of women require the complete denial of the rights of the unborn. Justice Roger Taney in his infamous 1857 Fred Scott decision captured this view best when he argued that when the Founding Fathers wrote “all men are created equal,” they did not really mean it. They only meant white men are created equal. If they had really meant that all men are created equal, including black men, wrote Taney, the Founders “would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” Taney’s view, and the view of all pro-slavery Americans at the time, was that the Constitution held no protections whatsoever for black people. They had zero rights, and indeed only the formal recognition of this could fully vindicate the constitutionally protected rights of southern slaveowners. If a white man could be equal to a black man, then a white man was nothing: one could enslave, segregate, and deprive the white man just as whites did the blacks now. The inherent rights of the white man depended on the denial of all rights to the black man. That is why, three years after the Dred Scott decision, the southern slave states seceded from the Union following the election of Abraham Lincoln. If the constitution were to curtail or prohibit slavery, even in the territories, southern slaveowners believed it would destroy their entire way of life, and with it their constitutional rights. Given the stakes, and the principles in question, they felt they had no choice but to secede.

            The goodness of the Constitution resides in the ideals it embodies, its possibility for amendment, and even in the correction that the Court can make of itself.

Considering Abortion and the Supreme Court Decision of 2022

           

            The decision by the Supreme Court in 1973 to take away the consideration of abortion away from the states and declare it a right contained in the constitution rather than as a matter for the people to decide in their various states was not a constitutional or wise move. That decision showed lack of respect for the constitution and the willingness to circumvent the constitution to get a result people wanted. That decision has led to unnecessary division. Other liberal democracies have changed abortion policies through democracy. When the perspective of the people or their values of the people change, this is the peaceful means by which liberal democracies change. The country has needed a peaceful way of resolving its differences regarding this matter.

I want to discuss some matters related to abortion that became part of the news cycle in 2022. Before I do so, I should disclose that my belief that humanity is created in the image of God and the protection of human life is a divine command. 

            One could argue that the decision by the Supreme Court has breathed new life into our democratic institutions, returning the issue to the states and to the people where it resided until an earlier Court took that right away. Unfortunately, it took 60 million unborn dead, 50 million of which occurred in the first trimester, before the Supreme Court corrected the error of Roe.

            Among the surprises for me in the Pew Research Center study of political typologies is the lack of reference to abortion for any of them. The Democrat Party, through the pressure of the progressive part of the political Left, seems committed to one of the least defensible policy positions regarding abortion: that ending human life in the womb should be legal for any reason up until the moment the baby is being born. The denial of all rights to the unborn is integral to what they understand to be women’s constitutionally protected rights, without which they will cease to be citizens with equal rights as their male counterparts. If women are not allowed to kill their unborn babies, they will be stripped of their full humanity. 

The Women’s Health Protection Act is a bill the political Left would like to become the law of the land. It would go much further than did Roe v Wade. It would prohibit any government—federal, state, or local—from taking any action that could, even potentially, reduce the likelihood of abortion. 

The legislation would require all governments everywhere to repeal any pro-life laws, regulations, or policies that might already be on the books. Three-quarters of the states, for example, have laws requiring either parental consent or notification before a minor may get an abortion. Nationally, 70% of Americans—including 57% of Democrats—favor at least the latter. The Supreme Court upheld such laws under Roe, but the Women’s Health Protection Act would make requiring any kind of parental involvement impossible.

More than 70% of those surveyed oppose diverting federal tax dollars to support abortion, including a majority of those who identify as “pro-choice.” The Supreme Court repeatedly held that Roe did not require government to subsidize abortion, but the Women’s Health Protection Act would require it.

Most Americans believe that health care workers with religious objections should not be forced to participate in abortion. The Supreme Court has applied the federal Religious Freedom Restoration Act to protect the exercise of religion from coercive, pro-abortion government policies. This bill explicitly makes RFRA inapplicable to any situation that involves abortion.

Even when inventing a right to abortion, the Supreme Court in Roe v. Wade referred dozens of times to women, mothers, and “unborn children.” In fact, the high court held that the presence of a second human being meant that the so-called right to privacy was not unlimited.

Even the proposed Women’s Health Protection Act, as recently as 2019, used “woman” or “women” three dozen times and stated its purpose as protecting “a woman’s ability to determine whether and when to bear a child.” The current version deletes all but one use of “women” (in the bill title) and now states its purpose as protecting “a person’s ability to determine whether to continue or end a pregnancy.”

This bill does not restore Roe v Wade but goes well beyond it in imposing the most extreme progressive view of abortion upon the nation. From a political conservative perspective, here is an issue that belongs to the states and to the people, with the federal government extending its power into areas it is not constitutionally allowed to go. 

            Let us put the abortion issue in an international perspective. The United States is one of only seven countries that allow elective abortions after 20 weeks of pregnancy. That puts America in the company of not only Canada, Singapore, and the Netherlands, but communist, totalitarian regimes North Korea, China, and Vietnam. Most Western European countries prohibit abortion after 15 weeks of pregnancy or less, which is what the Mississippi law that prompted the Dobbs case would do, an article in the Washington Examiner explained. Germany allows an abortion in the first 12 weeks of pregnancy. The Nordic countries of Denmark, Norway, and Finland, allow abortion in the first 12 weeks, with exceptions. France also allows abortion until 12 weeks, but a woman may get permission from two doctors to get an abortion after the first trimester. In Spain, abortion is available for any reason until the 14th week, and in unusual circumstances, such as the mother’s health, up to 22 weeks. In Sweden, the limit on when an abortion may be performed is 18 weeks, a month longer than the Mississippi law. Iceland allows abortion for up to 22 weeks. The Netherlands and the United Kingdom both allow abortions for up to 24 weeks in most cases. These countries all provide exceptions.

            If we look at polls, most Americans think that, especially in the first trimester, it is permissible to resolve the claims to constitutional protection in favor of the mother. A significant majority—about 85 percent—consistently tell pollsters they believe abortion in the first trimester is permissible. More than 90 percent of the abortions that are performed are in the first trimester. Most Americans do not see the typical abortion as something that should be punishable in the way that murder is punishable.

            We are temporal creatures. We have a beginning of our time. Pondering the meaning that we have a beginning is not something that philosophers do often. We have an allotted time that has a beginning and end.

Natality and the miracle of the beginning are central to considering the human condition. The capacity of human beings to give birth to new realities means a constant need to reconsider the basics of the human condition. It is quite reasonable to expect the unexpected, and that new beginnings cannot be ruled out. Yet, this means that human beings can lack control of the effects of such beginnings. In this case, modern, automated societies engrossed by ever more efficient production and consumption encourage us to behave and think of ourselves simply as an animal species governed by natural laws. This suggests the vital importance for civilized existence of a durable human world, built upon the earth to shield us against natural processes and provide a stable setting for our mortal lives. Thus, human action is the process which human beings act together to make the world an increasingly friendly place in which human beings live. 

            Nathanel Blake has said it well. Pregnancy is the normal reality of human reproduction. This normalcy, in turn, reminds us that we were all once utterly dependent in utero, and that most of us will be dependent again, whether from illness, injury, or old age. In short, we are all the violinist. Human solidarity recognizes this shared dependence. Ignoring it, or trying to avoid it, has been a great failure of the liberal political tradition. Liberal discourse privileges independent, rational adults (or at least adults who imagine themselves such). But independent, rational adults do not need solidarity, they need a non-aggression pact and mechanisms for conflict resolution—which is what classical liberal theorists such as John Locke sought to provide. In contrast, solidarity begins with the truth that dependence and weakness saturate our shared humanity. Instead of boasting that we are born free and rational, solidarity knows that we are born vulnerable, and only attain limited freedom and rationality through the care and teaching of others. An ethos of solidarity knows not only that we are always at risk of a relapse into physical dependence, but that our mental, emotional, and relational needs also make us dependent on others for fulfillment and happiness. 

            Cherishing life and protecting life is the responsibility of each of us that finds expression in political life and the constitution. 

            Part of cherishing life means that conservatives who support the Court decision may need to consider social policy implications of such an ethos of solidarity. The American Enterprise Institute has suggested that a post-Roe policy environment can be an opportunity for the political Right to renew its commitments to the value of work and the importance of the married, two-parent family. This means re-thinking the child tax credit to increase it, beginning with pregnancy, and lasting until the 18th birthday of the child, making the full credit available to more working families.

            The Supreme Court decision of 2022 could lead to cherishing the constitution, cherishing plurality and rational debate in the public square, and cherishing life. That would be a result that could lead to human flourishing in our life together.