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I appreciate this thoughtful post.

I take issue with both your facts and interpretation on Roe.

Let me state, to begin with, I'm a pro-choice liberal. But just in case it might matter, I'll also say that I don't like abortion or anything about it. I mean it when I sign onto the notion that it should be safe legal and rare. I strongly support the notion, from Roe, that after viability, the ability of the developing baby to sustain, even with assistance, meaningful life outside the womb, means it is one breath away from personhood, and no longer subject to the mother's choice save in extreme cases. I understand and oppose partial birth abortion at the same time I confirm the woman's right to choose abortion in the first trimester, with the waters muddy in the second and only rare and extraordinary justification in the last.

If you read my other posts, I don't think the justices in Roe made up any rights. We don't get our rights from government. We don't get our rights from the Constitution. Both these organs help vouchsafe them.

That people have a right to privacy that includes their reproductive choices seems right as rain to me. It is only a convenience that you can find justification for these rights or any others in the constitution. Anyone with doubts is advised to please re-read the 9th Amendment and ponder its inclusion, and especially, to spend a few nights on the history of the Bill of Rights.

Since in abortion two lives are involved, somebody had to decide whether both were equal as persons, or not. If you have read Roe, and not just legal commentary, you will know that the origins of attitudes and laws about abortion in our history were carefuly taken into account. The ability to decide whether a developing baby was human life or potential human life was considered by examining law, scripture and tradition. Since clerics, philosophers and lawyers disagree, the judges had to decide.

You would like this to have taken place at the state level. I can see that. Choosing whether or not to trump state law with a federal ruling becomes a matter of whether the citizen can receive due process and equality from the state. I am tolerant of the fact that some states have capital punishment while others do not. I would not be tolerant of some states having slavery, some segregation, some suffrage for women, some restricted abortion rights, and some not. It is a choice based on judgment. I accept other points of view, and there are plenty.

You know, by now, that I believe Madison would have never accepted your "minting new-found rights" formulation when he wrote the original of the Bill of Rights.

As a final note, I think that some of the concern by liberals regarding conservative justices sending abortion back to the states is overdrawn hysteria. Roe is not Dred Scott. It is unlikely to now be reversed after having been relied on for so many years.

Thank you for a thoughtful response.

For anyone who has not, may I gently suggest actually reading Roe v. Wade to see the background of the ruling.

"I believe Madison would have never accepted your "minting new-found rights" formulation when he wrote the original of the Bill of Rights. "

You need to learn a little of what Madison had to say about the Bill of Rights.

When he introduced what became the Ninth Amendment:
""...it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution (the Ninth Amendment)."
I Annals of Congress 439 (Gales and Seaton ed. 1834).

Yet liberal judicial activists like you argue just the opposite- that the rights would be more secure if they were in the hands of the federal government!

Fortunately, no judge has ever succeeded to construe the Ninth to give him such power.

The one requirement to be a believer in a living constitution is a lack of knowledge of the Ninth Amendment.

You wrote, "Let me state, to begin with, I'm a pro-choice liberal. But just in case it might matter, I'll also say that I don't like abortion or anything about it. I mean it when I sign onto the notion that it should be safe legal and rare. I strongly support the notion, from Roe, that after viability, the ability of the developing baby to sustain, even with assistance, meaningful life outside the womb, means it is one breath away from personhood, and no longer subject to the mother's choice save in extreme cases. I understand and oppose partial birth abortion at the same time I confirm the woman's right to choose abortion in the first trimester, with the waters muddy in the second and only rare and extraordinary justification in the last. Sachem"

Look at your assertions regarding the Roe 'trimester' framework. Would you still divide the baby as a thing a woman has a special right to hire killed if it were proven scientifically that even from first implantation she is pregnant with an individual human being, a fellow member already of the human race? ... I suspect you will immediately jump to denying that the pre-viability life is a human being, a full fellow member of the human race, for that is how liberals mollify conscience in order to grant the special right of hiring the killing done, the killing done mostly for expedience and convenience. Your words sound high and rational, but you've segmented the truth of the unborn in order to justify serial killing of individual human beings in our nation.

You individual human life began at your unique conception, whether in a petri dish or your mother's body. There is no validity to the specious claim that one human being is less than another based on age or location. The science of Embryology is the venue for truth regarding the preborn ... and the first axiom of that science is that lifetime begins at conception. If the embryo is conceived via human gametes (or in cloning a human gamete and human somatic cell nuclear transfer) the individual life is a human being from that point onward for the remainder of the lifetime so begun.

Your courtesy is exemplary. Rather than rehash and go on at great length, let me just repsond to this point of yours: "Choosing whether or not to trump state law with a federal ruling becomes a matter of whether the citizen can receive due process and equality from the state." That's the nut of it. I would ask the collective citizens of any state: If you can't get "due process and equality" from your Legislature, why did you elect them, and why don't you elect yourselves a different one? Now, there's explicit Constitutional sanction for "trumping" on some issues, e.g., race discrmination under the 14th Amendment, but it is the Constitution, not scripture, clerics, philsophers, or the concensus of legle elites, etc. from which the Supremes derive their legitimacy, and going beyond the Constitution through convoluted semantics is just plain anti-democractic. Witness the court ruling imposing solutions, against the majority will, on busing, affirmative action, in some states abortion, in the 70's the death penalty - later backed away from, and, coming soon, gay marriage.If you want to abolish the sovereignty of the states or have courts be super legislatures, then great--- abolish the Constitution or pass the appropriate laws to bring that about in the democratic process. It's this well-justified feeling that the match is being gamed by the umpires that galls conservatives.

Since in abortion two lives are involved, somebody had to decide whether both were equal as persons, or not.

Sachem, your arguement here sounds a whole lot like some arguements in this Republic in the early days justifying slavery to me.

Life is the pe-eminant right. When two lives are involved, both are equal under the law short of a crime that infringes one upon the other...ie. the right to life. Your language, if logically drawn out, will lead to genocied...in fact, that is exactly what is happening.

The fact that you state, and therefore I must infer that you believe, that two human lives are involved, either puts you on our side of this issue, or it will make of you an abject tyrant.

Jeff