1) I agree with her that the Court is insane.

2) I agree that stare decisis (aka stare indecisis) is a predicament that is hard to get out of. Of course, there is precedent for overturning precedent.

3) As noted, there was not much protection in the law for the unborn, with one rather interesting exception - the rule against perpetuities. Basically, this property law concept was developed to prevent land and other property from being locked up in a trust forever when the purposes of the trust never came into existence. For example, you set up a trust for life for someone who is not born yet. Well, if they are never born, what happens to the property? The rule against perpetuities would release the property. Therefore the rule was that such a transfer was valid only if made for a life in being (eg, someone now born) PLUS a gestation period (eg, someone conceived). Thus, fetal existence was recognized, and such a "person" could hold and obtain a property right. Therefore, it would seem abortion would violate this property right of this person recognized since the Middle Ages. Or, in other words, how can a legal nonperson hold property rights? They can't. The Founders must have been aware of this law since a good portion of them were lawyers, and the RAP is a basic element of property law around for a long time.

4) I have rarely seen an exercise of the Commerce Clause power the Court hasn't liked.
C. Matt | 01.31.03 - 11:41 am | #

Very interesting analogy with the RCC and Sacred Tradition. However, I think the problem is not that the Founders thought the Gov's role was limited, I think its that the current people making up the government have forgotten that the purpose of law is to enforce a minimal standard of morality. Hardly any law exists that does not find some basis in morality. Yet, I constantly hear people say "you can't legislate morality." Bull----. That's all you should legislate - what's affirmative action? Welfare? Hate Crime Laws? Just about everything you can think of relates to morality. The problem is judges, etc. don't want to be perceived as trying to force morality on people. The result is they force immorality on people. In fact, the traditional police powers of the state including protecting the morality of the people. Morality is what law, ultimately, is all about.


C. Matt | 01.31.03 - 11:56 am | #

But the RAP is an aspect of property, not criminal law.

Property recognizes a person, but the criminal law doesn't. This has ever been a dissonance since the RAP developed.

Criminalization of abortion is, to my knowledge, not to be found in the Common Law.

As far as homicide statutes (and the a priori common law) are concerned, an unborn child is not a "person" within the meaning of the law.

-- $.02 from Laura's husband
Chris | 01.31.03 - 12:03 pm | #

Good points, but from the historical/scientific perspective, life was not recognised as beginning at conception, but at the quickening.


CS | 01.31.03 - 12:04 pm | #

Exactly. And the current system has tried to abdicate the responsibility to enact and enforce moral laws. They claim that its because they don't whose morality to go with. As you say, Bull. C.S. Lewis recognized that across a wide variety of religions and cultures there was still a universal moral law that people tried to recognize.

As far as laws protecting or recognizing the unborn, it is interesting to note that for some purposes I am part of a family of three (my unborn child being counted if I want to go on government assistence) but we are still a two person family when applying for financial aid and will be until June when, God willing, I will bear my first child. Funny that...
Laura | 01.31.03 - 12:06 pm | #

I agree that I wouldn't expect big changes on abortion to come via the courts. Also, let's not forget that the result of an overturning of Roe would not be to make abortion illegal. This is the thing that drives me nuts about how things are framed in public discourse. What it would do is permit legislatures to regulate abortion in accordance with the wishes of their population. I think that's a huge step forward, because everything indicates that most states would impose restrictions on abortion if given the opportunity.
JACK | Homepage | 01.31.03 - 12:21 pm | #

The U.S. constitution is a means to an end.

If we become overtly worried about the mechanics of government, I think we ultimately drop the ball.

The pro-life community seems to have an overwhelming sense that the law is what must change in order to protect innocent human beings. There is, I feel, the sense that the law leads our sentiments regarding the unborn, rather than our sentiments lead the law. Ultimately the law will change, but not before the people do.

(Someone please help me out with a good Chesterton quote.)

The government and its laws are a reflection of the society which they govern. As such, it is people hearts that allow abortion on demand to continue.

The fact that the Supreme Court crapped on the Constitution and wiped its ass with the Bill of Rights is not the underlying problem.
Paul Scheibmeir | 01.31.03 - 12:47 pm | #

The point about the RAP is that, if a fetus was recognized as having property rights through RAP, then those rights cannot be denied Constitutionally without due process. For instance, stealing is a crime because one is unlawfully exercising dominion and control over property to the exclusion of someone with superior rights in that property without permission. No superior right in the property, no crime. Likewise, denying the fetal rights recognized under the RAP, if done without due process, would be a crime. (no property right, no crime). Property law and criminal law often intersect (in fact, many categories of law often intersect). You can't just neatly categorize law in practice to keep each in its own little pigeon hole.
C. Matt | 01.31.03 - 1:14 pm | #

Put another way:

Abortion law/policy is not something that will be deconstructed. It is something that will be dismembered.

Why is that?

Morality may decline incrementally, but it generally does not increase incrementally. Morality will return when repentence is finally sought. Repentence will not be a gradual understanding that what we are doing is wrong, but a complete realization that what we are doing is wrong and that we must make immediate changes.

Paul Scheibmeir | 01.31.03 - 1:15 pm | #

Question:

Could a criminal statute state that a person is defined as a white, heterosexual male, thus only killing those persons would constitute homicide?

Well, it could, but it would be struck down as unconstitutional because it denies equal protection of the law to persons that the COnstitution recongizes, regardless of the statute's definition. That's why personhood recognition of the fetus under the COnstitution is critical - it cuts across all other areas of the law. Here's an interesting question: Can the legislature "create" a legal person not recognized under the Constitution?
C. Matt | 01.31.03 - 1:18 pm | #

A question for the legal scholars from one who is ignorant on such matters: Ever since reading the articles of the past few years, spelling out the fact that in the two abortion decisions by the Supreme Court, neither so-called defendant was given adequate defense of their cause. The core of the matter is that they were mis-represented. Instead the cases brought were distortions of the actual facts. In fact, when the one woman was being influenced to actually have an abortion, she fled cross country just to get out of the clutches of said defenders. Now, my question is, when neither woman had an abortion (Roe never even desiring one) and therefore there was present no corpus to be the material for the case actually brought for judgment, why cannot an appeal of these cases be brought before the court based on what would seem to be the very foundation for creating the law? Shouldn't there be, instead, some belated punishment of those who with malice tried to deceive the high court???
Chris K. | 01.31.03 - 1:22 pm | #

I'm on the same page here as far as the fact that government policies tend to reflect the will of the people.

The question here is not how pro-lifers are affected by the law but what we are trying to do to the law.

Whether or not abortion is legal, I am going to try to convince people that it is wrong. The difference is that in the case where it is legal, I am going to look for a way to change that fact.

The first thing all of us should be doing is praying. We should asking God for the grace to persevere and hope, and for the chance that more people will see the inherant wrongness of abortion. And on the ground, at the clinics, in private debate, legal or no, that's where prayer is going to be the most effective. Because we're dealing with individual souls and people.

However, in a country where abortion is legal, we should also be praying and seeking a means to end the legality. Making abortion illegal does not get rid of the demand or the reality of abortion. It just gives us teeth to fight the ones who prey on the naive, the frightened, and the innocent.

We should be aware that our victory will not be the day that we finally regulate abortion out of existence, but the day when women stop wanting to kill their children. (Note: as that as a matter of our fallen nature, to some degree, the day of victory is the day the world ends).

The pro-life fight is taking places in many arenas. The people who have the means to fight it in law I encourage because law ought to reflect the moral order. The people who are marching and lobbying I encourage because what is out of sight tends to be out of mind. The people who are praying and counseling are doing some of the most important work because the lives saved at the ground floor can become one more voice that will someday pray and counsel and fight for justice.

We should not despair because abortion remains legal but hope that one day the fact will not matter. But we also should not ignore the law and see how it might be used to support the law of God, in whose eyes every child is precious and ought to live.


As a side not to the person who noted that quickening and not conception was traditionally where life began, it because until quickening, it was hard to tell if the symptoms of pregnancy were in fact that. All the other ones previous to that can be attributed to other causes. Women can go months without menstruating if they have certain physical problems. Morning sickness, especially if light and occuring in the winter, can be attributed to other causes like food poisoning or lingering illness. Until a woman feel that child move for the first time, there's a strange feeling that she is not really pregnant. That is how I have felt as I am beginning to feel the first indistinct signs of life in my womb. Until now, only the tests, the sonograms, the little radar thingy have confirmed the life that I am bearing. And before the days of such wonders, quickening was when you could begin to be sure that it was in fact pregnancy causing all the symptoms.
Laura | 01.31.03 - 1:26 pm | #

Laura,

I mentioned "quickening" because the points were made about our Founding Fathers, and the common law. Using the old laws to abolish abortion on demand is going to bring up the contemporary understanding of when life begins.

Our efforts would be better served to pass a Constitutional Amendment.


CS | 01.31.03 - 1:37 pm | #

Usually law is the last refuge of the immoral and/or incompetent. The purpose of the law properly utilized is to protect the three God-given rights of man which precede all legislation: life, faculties, and production. To the extent that the law does this it is just, to the extent that law violates any of these, it is immoral. And R v.W violates life because (i) there is no other non-arbitrary point where life could begin except at conception (ii) R v W therefore claims a Constitutional right to commit murder, thus (iii) R v. W is an example of the law perverted.
I. Shawn McElhinney | Homepage | 01.31.03 - 1:47 pm | #

Actually I was arguing for a constitutional amendment because I recognize how weak and argument from common law and the standards of the founders would be.
I would like to think that the founders and judges in the 17th and 18th centuries, or the 11th and 12th for that matter, knew what we do about life in the womb prior to quickening, the definition of the beginning of life would be different.

In response to Mr. McElhinney, I certainly think That R v. W is bad law based on those standards which are the ones which should count. My husband, in his Con law test, will unfortunately be hamstrung in that that test is ruled out as a possible a priori assumption. Would to God that our Court system had such a sane test for judging past decisions and making the rectification of bad judgement more possible. Meanwhile, we're at the mercy of 9 potentates who can determine what is law and what can't be made law.
Laura | 01.31.03 - 2:12 pm | #

Actually I was arguing for a constitutional amendment because I recognize how weak and argument from common law and the standards of the founders would be.

I understand. And while I would love to see the constitutional amendment you refer to, at the same time we can fight this on arguments from the purpose of law as far as what its purpose actually is.

I would like to think that the founders and judges in the 17th and 18th centuries, or the 11th and 12th for that matter, knew what we do about life in the womb prior to quickening, the definition of the beginning of life would be different.

The Founders defended the sanctity of life to the extent that they knew there was life. Thus, it is not unreasonable to presume that they would have opposed abortion if they had known that life begins at conception.

In response to Mr. McElhinney, I certainly think That R v. W is bad law based on those standards which are the ones which should count. My husband, in his Con law test, will unfortunately be hamstrung in that that test is ruled out as a possible a priori assumption.

Yes and that is unfortunate. I took two years of business law and the principles in law classes are to argue positions from precedents. R v.W, though a horrid abuse of the Constitution, is still a legal precedent. It is hardly the first egregious misrepresentation of the Supreme Court - which underwent a paradigm shift in 1941 and started becoming activist instead of constructionists as they should be. Nonetheless, until R v.W is overturned, it has to be treated as a precedent in Constitutional law classes unfortunately.

This is one example of why I believe that the more people who read Frederic Bastiat's 1850 magnum opus "The Law", the better off we all would be. I have been running excerpts at my weblog since September and have thus far posted about 75% of the work. (With another entry planned for tonight if I can find the time to do it.) Here is the first link:

http://rerum- novarum.blogspot.co...e.html#82352248

All subsequent links are linked to this one so it can be read in sequence.





I. Shawn McElhinney | Homepage | 01.31.03 - 3:20 pm | #

The posted letter has some thoughtful observations which dramatically influence the chances for change in the abortion legal scheme.

The commenter notes that "The other tendency which was problematic from the beginning was that if there is a Natural Law, we still have no idea what it is. Because the founders are mostly Protestant, they already are having problems within a generation of the Founding of interpretation of the law."

He's exactly right! There is a fundamental difference between the Catholic outlook--"There is a Natural Law, and we know (or can find out ) what it is" and a more common outlook--"There is not such thing as a Natural Law or if there is, we can't always be sure we know what it is."

Courts are very reluctant to base their decisions on any suggestion of an immutable natuiral law. The underlying theory of the U.S. is the social contract, consent of the governed. That's why so-called common law and stare decisis carry such weight. The series of judicial decisions costituting "common law" represent an expression of what the governed actually consent to. It is recognized that the expression is imperfect and so any change is incremental and when the minds of the governed have changed, there could be a reversal, as in Brown v. Board of Education's reversal of Plessy v. Fergeson.

Pro life arguments based on some statement of Natural law, such as "life begins at conception" are doomed to failure. What will succeed is a consensus that life begins at conception not becasue it is a natural law, but becasue that's what most people think. Once that happens, either a Constitutional amendment is possible, or is unneeded.
Joseph R. Mc Faul | 01.31.03 - 3:29 pm | #

I thought the original letter made another brilliant point regarding the Founding Fathers' focus on being free from interference. Limited government is necessary to protect people from internal (within the country) and external (from other countries) threats and for a few other things. But basically, the Founding Fathers wanted a government that would let its citizens lead their own lives.

That's great for freedom of speech and religion (and others), but over 200 years, we as a society have started to believe that because we must respect these freedoms, then whatever anyone believes is equally true.

I'm not trying to get on another one of those relativists' rants, but I thought Laura's point was very insightfulabout a majorhurdle we will have to overcome in convincing people that abortion is wrong.
Gene H | 01.31.03 - 4:04 pm | #

Although the courts avoid it like the plague now, American legal history isn't devoid of "natural law"-like reasoning. Go back over a hundred years and you would see that judges thought that they "discovered" the law and it had a more natural law "feel" to it.
JACK | Homepage | 01.31.03 - 4:18 pm | #

From Mark Shea's "reader:"

I think we might make greater strides in the legal front by going for an utterly different tactic, as far as legislature goes. A Constitutional amendment that does for the unborn what the post-Civil War amendments did for slaves. Recognize what every sane person knows to be true: that the unborn are persons worthy of the same rights as anyone that is already born. The problem with the arguments that work great on the front-lines of pro-life work is that the Court is insane.

Go for it. You've got about as much chance of succeeding as you would if you tried to bring back slavery. Here's a piece of advice, though: calling your opponents "insane" is likely to be even less persuasive to them than calling them "murderers." Perhaps your next move will be to call them "insane murderers."
Jon Peters | 01.31.03 - 5:23 pm | #

What will succeed is a consensus that life begins at conception not becasue it is a natural law, but becasue that's what most people think.

If by "life" you mean life in the sense of a born person, then you're wasting your time. The unborn have never been considered persons in American culture and law, are not now considered persons. Advances in science and technology relating to fertility and medicine, such as in-vitro fertilization, frozen embryos, pre-implantation genetic diagnosis, embryonic stem cell reasearch, human cloning, and others that are not even envisaged yet, make it even less likely that you will be able to peruade people in the future that "fertilized egg=person" than you have in the past. Already, you are losing support. When even as ardent and long-standing an opponent of abortion rights as Orrin Hatch publicly comes out against the position that personhood is conferred at fertilization, you should realize that you've already lost.
Jon Peters | 01.31.03 - 5:41 pm | #

The only person wasting their time is Jon.

He needs to save his energy so he can raise some children who are willing to vote for human destruction.

I suppose this will only cause Jon to raise his voice even louder. But the fact remains that we are not losing this war. The only ones suffering casualties are the ones who are "pro-choice".
Paul Scheibmeir | 01.31.03 - 10:48 pm | #

Since Jon feels inclined to announce the utter futility of the pro-life cause, I feel inclined to remind the others in the room that Jon couldn't debate himself out of a paper sack:

---

((and why does a highly organized blob of cells in the birth canal not qualify as a "person".))

Because it doesn't possess the necessary characteristics.

((OK...and the necessary characteristics are?))

I'm not sure. But being born is one of them.

------

With respites to logic such as the one above, I would give Roe Wade about 6 months to live.

The force of Volume is not the same as the force of truth.
Paul Scheibmeir | 01.31.03 - 11:04 pm | #

Paul,

From what you quote of Jon, he would seem to believe that one hour before birth, the "blob" possesses no rights. Geography is the key to personhood: if you're inside the womb, you're tissue, but the instant they pull you outside of the womb, you acquire rights. (The realtors are right: location is everything.) I don't think even the Supreme Court would agree with that.
Gene H | 02.01.03 - 1:08 am | #

Paul S:

But the fact remains that we are not losing this war.

Yes, you are. You've been losing it for more than three decades, not only in the U.S., but in the world as a whole.
Jon Peters | 02.03.03 - 3:45 pm | #

Gene H:

From what you quote of Jon, he would seem to believe that one hour before birth, the "blob" possesses no rights.

I don't consider a mature fetus to be either merely a "blob" or to be devoid of rights. In most cases, however, the right of the pregnant woman to terminate her pregnancy outweighs the right of the fetus to life.

Geography is the key to personhood: if you're inside the womb, you're tissue, but the instant they pull you outside of the womb, you acquire rights.

Birth is obviously more than just a change of "geography." It is the threshold that marks the beginning of personhood.

Jon Peters | 02.03.03 - 3:48 pm | #

Yawn.

Ok Jon - think what ever you want to think.

Paul Scheibmeir | 02.04.03 - 1:01 am | #