Behind the Miers controversy, of course, lies above all the endless battle about Roe v. Wade, the case in which the Supreme Court found that the Constitution forbids the states from making it a crime to interrupt a pregnancy, especially in its early stages. I thought to write at some length about these Constitutional issues, which have not been much discussed in the blogosphere, except by lawprofs and the like.
Let me start by saying that if I were a legislator, I'd vote in agreement with what most Americans believe. It would be a mistake to forbid all abortions, but abortion should be regulated, especially in the later stages of pregnancy when a premature birth might result in a baby capable of survival. I don't think abortion in the early stages of pregnancy is the same as murder. That's a theological or philosophical debate to which I don't have much to contribute, but to discuss the Constitutional aspects of the issue, it's best to lay at least that much on the table.
The result I advocate would probably be the law in most states if the Supreme Court had never been involved in the issue, and the noise of the controversy would be far less loud. Why? Because the political process would have taken effect, and changing public attitudes would be reflected in law. No doubt Utah and a few Bible Belt states would outlaw abortion entirely, and others would restrict it. Others, like California, have put a "right of privacy" into their constitutions that was intended, among other things, to limit the state's ability to interfere with abortion. As Justice Ginsburg long ago observed, the effect of the Roe decision was to cut short the political conflict. The debate has now metastasized into a debate not only about constitutional law, but about the role of the Supreme Court and how justices should be selected.
Our Constitution gives the federal government limited powers, and the Bill of Rights, the first ten amendments to the Constitution, places specific restrictions on the feds' ability to do things like promulgate a state religion and tell newspapers what to print. Originally, these restrictions did not limit the powers of state governments, which were sovereign. After the Civil War, a Congress purged of rebels passed three constitutional amendments. One, the fourteenth, was designed to insure that freed slaves became full citizens, and thus provided that persons born or naturalized in this country were citizens of the states where they reside. It also did other post-war things, such as invalidate the Confederate debt, that are rarely spoken of today.
The language of the fourteenth amendment relevant to our discussion is this:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.For the first time, the constitution limited what the states could do. The idea was to protect the freed slaves. As we shall see, that ideas has stretched quite a bit beyond that intention since.
What were the "privileges and immunities" so protected, what were the protected "life, liberty, [and] property" and what was "equal protection of the laws"? The language is general, and when language is general, lawyers prance, preen and saunter. Where this legal horsing around has led our constitutional law, is a subject we will take up in the next post.