Scalia sees no abortion right in Constitution

Buffalo News ^ | 03/14/2002 | STEPHEN WATSON

[wwcc]

Supreme Court Justice Antonin Scalia, during a luncheon in Buffalo on Wednesday, re-emphasized his view that women don't have a constitutional right to an abortion. His belief flies against the court's majority decision in the 1973 case Roe v. Wade, which found a constitutionally protected right of privacy that covers abortion.

"My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."

At times flashing a prickly wit, Scalia also criticized the process for selecting new Supreme Court justices as being highly political today.

And he defended the court's 5-4 decision in the 2000 presidential election that stopped ballot counting in Florida and handed victory to George W. Bush.

The recurring theme throughout Scalia's 40-minute speech, and in answers to audience questions, was the importance of a strict, limited interpretation of the Constitution.

"It says what it says, and it ought not to be twisted," he said.

Scalia, who is the foremost conservative member of the Supreme Court, was appointed by President Ronald Reagan in 1986. .

Scalia devoted the bulk of his speech to the clauses in the First Amendment that ensure government may not restrict people's religious practices, nor impose religion on anyone.

Judicial rulings on those clauses - and the entire Constitution - must be based on their text, the authors' original intent or historical practice, he said.

In quoting George Bernard Shaw - using a phrase later appropriated by Robert F. Kennedy - Scalia said those who believe in judicial reshaping of the Constitution "dream things that never were."

The appropriate way to deal with an issue that demands updating judicial precedent or the Constitution is by legislative action or, where appropriate, a constitutional amendment.

"We have an enduring Constitution, not a living one," Scalia said.

After his prepared remarks, Scalia took questions and delved into several hot-button issues.

He dismissed the idea that abortion is a constitutionally protected right, but he also said the Constitution doesn't explicitly prohibit abortions, either. He indicated the issue ultimately should be decided by a constitutional amendment.

The fight over abortion rights already is heating up, as pro-choice groups dig in for a battle whenever Bush gets to make a Supreme Court appointment.

Picking up that theme, Scalia blamed the the bitter political fights over court nominations on the belief that judges are free to rethink the Constitution.

"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said.

Scalia defended the court's decision in the 2000 balloting debacle, saying it properly returned authority in the matter to the Florida Legislature.

Organizers said 930 tickets were sold for the event, sponsored by the Chabad House of Western New York and the University at Buffalo Law School.

[Cincincinati Spiritus]

"How do you propose to deal with the many cases in which pregnancy is clearly involuntary? You must remove your head from the sand on this one.

Actually I have responded to you on this question in #308. But I will remind you of my line of reasoning:

You may argue that a mother who has conceived because of rape had no choice. This is true. But the father had a choice and should be duly punished for his violation. Many of the best and longest-lasting societies punished rape as heavily as murder and rightly so. Indeed most states at the time of Founding prosecuted it as a capital offense to the astonishment of some Europeans at the time. We seem to have lost sight not only of the grievous offense of rape, but also no longer take such precautions as both prevent rape and make prosecution of it possible. But, the resultant child who is as much a victim as the mother should not be executed for having given no offense. The mother may be traumatised for the rest of her life and if she should seek termination of the unwanted child, her crime might be mitigated, perhaps even completely, because of such trauma. But make no mistake, that child is not an intruder. That zygote committed no violation of natural nor political law.

But, you have not responded to my objections to your applications of the Constitution, and have yet to show what at all in the Constitution has a bearing on the abortion debate. I suggest you read the ninth amendment where it is clearly stated that simply because the Constitution protects certain rights of the individual and the sovereignties of the states, it should not be construed to mean that there are not other rights that in the light of the tenth amendment fall altogether outside the domain of the federal government.

But perhaps you are under the spell of the Supreme dictates that there are certain penumbras in the Constitution that give forth emanations giving life to certain zones of privacy, or to put it plainly that there is an unwritten and yet still binding amendment that protects the absolute right to privacy and makes the Supreme Court and its executive henchman the guarantors of such hidden rights. It is a very difficult amendment to debate over, because it is difficult to discern the meaning of what is not there. But before you respond I suggest you read my post #401.

[Cincincinati Spiritus]

America was a republican not democratic form of government.

[Cincincinati Spiritus]

Sorry, I didn't know to what you were responding.

Alexis de Tocqueville's Democracy in America is likely the most observant, thorough and thoughtful book on the American form of democracy, and one of the most insightful books ever written on democracy and in particular modern enlightened democratic republics.

No one who has read his book with even a little understanding will dispute this claim.

[RobbyS]

Every time a political appointment is made the meaning of the document changes. I would say that every time the Court makes a political rather than a legal judgement, the Constitution changes. Too often the decision of the Court extends far beyond the case that is settled.

[liberallarry]

The Court doesn't take cases that have no political significance. To the contrary. If a case makes it that far you can be sure it has a great deal - and that the country is seriously divided.

[RobbyS]

If the Court had simply struck down the Texas abortion law and allowed the Texas legislature to construct a new statute, then the country would not have been split. But the problem was that they also struck down the much more liberal Georgia law. This is a perfidious use of judicial review.

[H.Akston]

"But, the resultant child who is as much a victim"

I really must raise the BS flag on you here. He(the child) is not as much a victim. He wasn't even around when the act happened. If an unwanted child is by definition a victim, there are a lot of victims out there. Of course, liberals think we're all victims.

You're fantasizing, just like you're fantasizing about me not backing up my position with the Constitution. Almost every single post I make, I point out that Amendment IV, the right to be secure in one's person, and Amendment XIII, the right to not involuntarily serve, and Amendment X, backs up my position that:

State legislatures should decide that governmentally protectable life begins at whatever point they choose to define physical independence.

Your position on rape will result in an unjust burden on a supposedly free American woman. You force the rape to last 9 months.

[H.Akston]

But perhaps you are under the spell of the Supreme dictates that there are certain penumbras in the Constitution that give forth emanations giving life to certain zones of privacy, or to put it plainly that there is an unwritten and yet still binding amendment that protects the absolute right to privacy and makes the Supreme Court and its executive henchman the guarantors of such hidden rights. It is a very difficult amendment to debate over, because it is difficult to discern the meaning of what is not there. "

I really don't think I could have been any clearer. I did not use a "right to privacy" to justify anything I've said. I never mentioned the word "privacy". The justices that do are neglegent and perjurous. They are disregarding their oath to uphold what the Constitution says and only what it says.

I clearly said that the right to not be seized, and the right to not involuntarily serve another in a physical capacity (the 4th And 13th amendments respectively) are in play here. I don't need to make up some "right to privacy", so in response to your first four words above, "perhaps I am NOT". I can use the words in the Constitution to support my belief quite nicely, that:

State legislatures should decide that governmentally protectable life begins at the point when physical independence is possible for the life.

[H.Akston]

And you don't determine the existence of life on an individual's level of dependence. By your argument, we could take a fish out of water, lay it on the sidewalk, and when it dies say "see, it was never alive because it couldn't survive without water". It's a faulty argument because you know that the fish was indeed alive.

What a terrible, and misleading analogy.

The water is not part of another living creature's body. No body is seized, by the fish using the water.

We all have a right to be secure in our persons from another's intrusion.

[H.Akston]

But make no mistake, that child is not an intruder. That zygote committed no violation of natural nor political law.

You know, a mentally sick person can wander into my house, and be an intruder, and I have a perfect right to kick him out, whether he intended to violate my space or whether he was too mentally incapacitated to have any guilt for trespassing. A weed can be an intruder, in my garden. An intruder doesn't have to be culpable, or have legal guilt, it just has to be in my space.

[RobbyS]

State legislatures should decide that governmentally protectable life begins at whatever point they choose to define physical independence. This sort of raw positivism is part of the problem. Since when is the State free to ignore the facts of the matter, which include the well-rehearsed facts of embryology? True, the State is free to give or withhold its protect to anyone it chooses, but it damn well better have good reasons for its decision. Otherwise we must say that the Nazi state had every right to withdraw citizenship from the Jewsamd the, finally, all protection.

[liberallarry]

You could be right - you could be wrong.

That's why the selection of Supreme Court judges is so important, why the process is so political, why Scalia made his remark about "mini-plebiscite" - and why I interpret it to mean that the Constitution is a living document.

[Cincincinati Spiritus]

"Almost every single post I make, I point out that Amendment IV, the right to be secure in one's person, and Amendment XIII, the right to not involuntarily serve, and Amendment X, backs up my position that."

You cannot both hold that the Constitution protects a mother's right to abortion and at the same time hold that the tenth amendment puts the entire debate under the jurisdiction of the states.

It would make a debate much easier if you did not hold such contradictory opinions. You grasp at every possible argument without considering whether they are even consistent with one another.

"Your position on rape will result in an unjust burden on a supposedly free American woman. You force the rape to last 9 months."

I force the woman to do nothing. The rapist was the one who committed the atrocity, and is the one who should be punished. I hesitated to bring this instance up but you raised it. This is not the normal situation. Yet you still cannot respond to my argument that the child who is conceived does nothing either unlawful nor unnatural. But apparently you did not even read my part concerning mitigating circumstances. You criticize those for being inconsistent who allow abortion under certain circumstances. And yet you berate any argument that is consistent.

On the whole I find your arguments incomprehensible. Unlike Liberallarry, you cannot even understand the other side of the debate, unnable to detach yourself from empassioned opinion to engage in reason.

[Cincincinati Spiritus]

"If an unwanted child is by definition a victim, there are a lot of victims out there."

Actually an unwanted child is something of a victim, unless you consider growing up in the merry-go-round of foster homes healthy or a well deserved repayment for intruding in his mother in the first place.

But maybe I assume too much, perhaps by child you mean the unborn germ, that bane of societal evolution and plague infecting the nations of the earth.

To tell the truth, I simply cannot understand your hatred for the unborn. Having a child of less than a year and another soon to be born, it is quite incomprehensible to me. I can see little point to carrying on this debate.

[H.Akston]

"To tell the truth, I simply cannot understand your hatred for the unborn. "

As often as not, when someone uses the phrase "To tell the truth", it means they're about to fool themselves, into believing a lie.

I don't hate the unborn, any more than I hate anyone who is dependent on another. You're lying, to say that I hate the unborn, because I think you know it's not true. Dependency happens all the time, and I don't hate the dependent. But we live under a Constitution that preserves the basic rights to life liberty and property. One of the keys to liberty is independence. It's just as important as life. I just love, and will fight for, everyone's right to be free and independent of other people. That includes the rights of, for example, a raped women to be free of the physical bonds and demands that a rapist's child without her consent, places on her body.

I don't hate the unborn. I'll not accuse you of hating liberty either, because I just think you're naive rather than evil.