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As South Dakota debates an abortion ballot initiative, the question remains: Does the Constitution protect unenumerated rights?

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Last week, South Dakota election supervisor Kea Warne announced that state voters will have the opportunity this November to accept or reject one of the nation's strictest anti-abortion statutes, a proposed law that would completely ban the practice except for narrowly defined cases of rape, incest, or the health of the mother. Sponsored by the group VoteYesForLife.com, which gathered well above the 16,776 signatures necessary for inclusion on the fall ballot, Initiated Measure 11, as the proposal is known, puts the question of abortion rights directly in the hands of state voters. If they vote yes, doctors who perform illegal abortions will face up to 10 years in prison and up to $10,000 in fines. But should it matter what the voters think?

Look at it like this. The United States Constitution guarantees a number of specific individual rights, including free speech and the right to keep and bear arms. But what about those rights that aren't listed? Do we have the right to drink apple juice? How about the right to grow a mustache? More crucially, what about the right to be left alone? The Constitution mentions none of them. So if a majority of voters agree that we don't possess these (or countless other) rights, what's to stop the government from restricting our liberty?

The answer for many conservatives, and some libertarians, is nothing. Take Rep. Ron Paul (R-Texas). An outspoken foe of abortion, Paul favors turning the issue over to the states, where local preferences would trump a one-size-fits-all federal policy. Even pro-choice libertarians might like the sound of that. But consider the full ramifications of Paul's majoritarian position. Responding to the Court's disastrous decision in Kelo v. City of New London (2005), which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan, Paul argued that the Supreme Court should have simply refused to hear the case. "The issue," he maintained, "is the legality of the eminent domain action under Connecticut law, not federal law….The fight against local eminent domain actions must take place at the local level."

While Paul is certainly right that eminent domain abuse must be aggressively fought on the local level, he's wrong that we should skip the federal fight. As the Fourteenth Amendment declares: "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." Yet in Paul's mistaken opinion, this potentially libertarian amendment has no impact on the actions of state or local governments. Legal historians, however, have long agreed that the Fourteenth Amendment was originally meant to apply the Bill of Rights (and other natural rights) to the states.

Similarly, conservative former federal appeals court judge Robert H. Bork has attacked the Supreme Court for "inventing" rights and "usurp[ing] the powers of the people and their elected representatives." Bork is referring to two cases here. First, in Griswold v. Connecticut (1965), the Court struck down that state's ban on contraceptives, holding that the law violated the "zones of privacy" created by the Constitution's "various guarantees." Second, in Roe v. Wade (1973), the Court recognized the right to an abortion within the privacy rights guaranteed by Griswold.

For Bork, the absence of the word privacy in the Constitution means that the document does not protect it. But what about the Ninth Amendment, which states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, the Constitution itself recognizes that we possess far more rights than any document could ever list, a situation that the legal scholar Stephen Macedo has likened to islands of government power "surrounded by a sea of individual rights." If Bork had his way, we'd all be drowning in a sea of government power.

Which brings us back to the voters of South Dakota. There's nothing inherently noble about a majority of people agreeing on a particular issue. Indeed, bad ideas often prove more popular than good ones. It's only when popular majorities are anchored to the idea of inalienable rights that they're most entitled to our respect. Without that underlying commitment to individualism, majority rule can and frequently will degenerate into the loss of liberty for unpopular minorities. The racist policies of the Jim Crow South, after all, were often extremely popular among white voters.

So before we get too misty over the will of the people of South Dakota, let's remember that James Madison warned us about the tyranny of the majority, not the tyranny of unfettered individual liberty.

Damon W. Root is a reason associate editor.

NEXT: Woody and Bobby

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  1. It needs to be legal thru all nine months otherwise women have no rights, it is the most important right what womyn have.

  2. Life would be so much easier if Susan was still considered to be someone’s property.

  3. We need NutraSweet with some Feministing links.

  4. The Federal government is given no power over the regulation of the growth of mustaches, so you don’t have to worry about a lack of explicit protection for mustache growing rights in the Federal constitution. They don’t have the power to regulate it anyway.

  5. They don’t have the power to regulate it anyway.

    The federal government only needs to threaten to withhold some type of funding to the states if they fail to pass legislation banning mustaches.

  6. The purpose of the constitution is to impede progress when the majority becomes the mob.

  7. And the purpose of abortions is to prevent mobs.
    Sounds like a good plan to me…

    hugs,
    Shirley Knott

  8. You get some pretty peculiar circular reasoning when you couple the 9th amendment with the 14th to enforce a right on a state.

    But what about the Ninth Amendment, which states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

    Any state level abortion legislation should begin: “We the people of the State of ____ do not retain the right to an abortion.”

    This would take the 9th amendment out of the equation. On what basis then, would the Federal government enforce a right to abortion?

  9. Didn’t the supreme court basically agree with Ron Paul in Kelo?

  10. Some dude,

    The real issue is how the 9th amendment jibes with #10: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    There’s no easy answers to that question. Maybe, in the absence of Roe, states do have the right to outlaw abortion. Maybe it was one of those 9th amendment rights that’s not supposed to be denied. Nobody knows, so we let 9 lawyers fight it out.

  11. kinnath: The federal government only needs to threaten to withhold some type of funding to the states if they fail to pass legislation banning mustaches.

    Which is why the 16th and 17th amendments FUBARed Federalism. The Senate was supposed to look out for State interests so the Federal government wouldn’t do things like that.

    Also if the Federal government could not tax directly, it couldn’t directly drain state resources and threaten not to give some back.

  12. Democracy is bad. Good and recent example: 45% of the nation thinks that the gas tax holiday is a good idea. That’s opposed to a mere 49% who think that it’s a bad idea. That’s to say that at least 45% of the nation doesn’t know shit about econ 101 (or in a few very rare cases, they have their “taxes are theft” heads so far up their asses that they can’t think straight). That’s unacceptable. And I bet there are plenty of other ideas that are almost as bad and could garner up a majority of Americans.

  13. Abdul: Maybe it [abortion] was one of those 9th amendment rights that’s not supposed to be denied.

    “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

    If the people, through their elected representatives, explicity state they do not retain the right to abortion, on what basis could the 9th amendment be used by the Federal government to enforce abortion rights? Elected representatives are how the people express their will.

  14. Unenumerated rights generally refers to ancient rights held by a broad historical consensus. Abortion is not one of them.

  15. Democracy is bad

    Tell ya what…make me King and all your troubles will be over.
    I have a plan…

  16. Two thoughts:

    (1) Abortion makes a poor test case for question of whether voted rights triumph natural rights because the entire abortion debate revolves around the question of whether a fetus is a legal human being or not. Depending on the position assumed on that question both sides could be protecting the natural rights of somebody against the unjust encroachment of the state or individuals.

    (2) We can argue whether philosophically people have natural rights or not but as a practical matter you only have those rights you can enforce yourself. In the modern world, that means getting a lot of other people to agree with you that a certain right exists. Believing you have the moral high ground won’t help much when you’re dead or imprisoned. The only way to truly protect rights is to create a broad consensus that such a right exist.

  17. Daniel Reeves, should the taxes then be increased, or do they just happen to be exactly right just as they are?

    I can’t speak for anyone else, but I will not suddenly start driving more if gas starts to decrease by up to 18 cents per gallon.

  18. That is one massively stupid article.
    Damon W. Root is a reason associate editor.
    Is he now? He doesn’t show up on the Staff page. Has he written any other stuff for reason?

    So you think you have a constitutionally guaranteed right to abortion? What about retroactively? Because I’d be OK with that. Just that most people who think a woman can terminate her child’s life when pregnant don’t think the father has the same right after she pops the bastard out. Yet the Constitution is equally silent.

    Sending the issue back to the states is exactly correct and in accord with the Constitution. Unlike Kelo where the court ruled in DIRECT VIOLATION of the SPECIFIC TEXT of the ENUMERATED RIGHT in the Fifth amendment.

    You think abortion should be legal? Fine, but don’t try to pass it off as a constitutional right.

  19. Abdul,

    9 and 10 arent in any conflict.

    #9 is about rights.

    #10 is about powers.

    #10 states that powers not specifically listed in this document belong at some other level (either the state or the people, but we arent saying which). As protecting rights does seem to be one of the federal powers, #9 has to come into play to determine what they are.

  20. some dude,

    By your logic, a state could also declare it does not retain the right to free speech, no?

    If you would respond that a state could not do that because of the 1st Amendment, then why would doing that supercede the 9th Amendment?

    And how about a state regulating moustaches? Unless you think states should have no constitutional restriction to doing so, one would need to rely on the combination of the 9th and 14th Amendments to restrict that power from states.

    All that said, the 9th Amendment cannot simply be a catch-all for whatever anyone wants to declare a right. My impression is that it was meant to recognize the English Common Law process on which the legal precedent of our concept of rights was based at the time the Constitution was written. Whether Roe v. Wade was a continuation of this tradition or an abberation or a conclusion simply made obsolete by the Constitution is likely up to the beholder. Since the whole entire bugaboo about abortion is decide between competing claims of rights, I don’t think the issue can be fairly decided by a Court mandated restriction on government action, and thus should be open to the folly of the masses to hash out.

  21. Pro-choicer weighing in here:
    There is no constitutional right to an abortion.
    The issue is clearly left to the states as per the 10th.
    Ron Paul is correct, as are the other strict constitutionalists.
    I have no problem with that. If my daughter has to travel to get her abortion, then so be it.
    Roe vs. Wade is a travesty of justice, and one of the most egregious examples of fabricating a right to mollify the majority.

  22. Democracy is bad. Good and recent example: 45% of the nation thinks that the gas tax holiday is a good idea. That’s opposed to a mere 49% who think that it’s a bad idea. That’s to say that at least 45% of the nation doesn’t know shit about econ 101 (or in a few very rare cases, they have their “taxes are theft” heads so far up their asses that they can’t think straight). That’s unacceptable. And I bet there are plenty of other ideas that are almost as bad and could garner up a majority of Americans.

    Lousy example, Daniel. The gas tax holiday is a good idea if federal spending is cut to reflect the decreased revenue. It’s more of an arguable proposition if it is used to buy votes, while finding other ways to make up the lost revenues.

    Would you be also be opposed to a one-year income tax holiday, if federal spending was also slashed big-time for that lost revenue year, even though both the IRS holiday and spending cuts expired after a year?

  23. Warren,

    Although I agree with your conclusion, you sidestep the whole point of the article that there are UNenumerated rights that are every bit as valid as unumerated rights.

    My understanding of the 9th Amendment is that it was put in specifically because it was protested that by enumerating certain rights the implication was created that we had no rights other than those enumerated. The 9th Amendment is directly saying that that is not so. The 14th Amendment says that states cannot violate our rights any more than the federal government can.

    That the right to abortion isn’t specified in the Constitution is true enough, but unless you want to argue that we have no rights other than those thus specified, it’s also irrelevant. Well, or at least besides the point of the article.

    Problem is, the anti-abortion faction could (and does!) make the very same argument. Thus, I don’t think the right to abortion was something that was simply forgotten about or ripe for judicial “discovery.”

  24. the whole point of the article that there are UNenumerated rights that are every bit as valid as unumerated rights.

    Uh, probably obvious, but should read: “UNenumerated rights…are every bit as valid as enumerated rights.”

  25. Ummm, the 4:19 post was me. Bloody “remember me” function doesn’t work when you use joke header tags.

  26. Daniel Reeves, should the taxes then be increased, or do they just happen to be exactly right just as they are?

    They should probably be higher. But the point is that these taxes go toward funding broken down roads. Getting rid of these taxes would be an unthinkably stupid idea. I don’t care if you’re a goddamn anarcho-capitalist or a communist or whatever. If you disagree with me, you’re doing something wrong.

  27. I have this crazy idea that a person doesn’t get rights until they are born alive, ie living outside the person. until then they are just a potential person and protecting a potential makes as much sense as starting pre-emptive wars over a potential. either way, I view abortion as a medical procedure and I believe the government has no right to regulate or control medicine. that is why I am for abortion but I had no problem voting for Ron Paul, because he believes in the 9th amendment, it should be up to the states and the people. I totally disagree with the above comment, the 9th amendment means what it says, it is up to the states and the people, even though some states will get it wrong.

  28. The point of the Ninth is to protect unenumerated rights. Abortion isn’t one of those unenumerated rights, because it’s about weighing two separate and conflicting rights — the right of a women to make decisions about her body, versus the right of an unborn child / fetus / lump of flesh to stay alive.

    That’s why Roe v. Wade wasn’t simply defended as a logical and obvious application of the Ninth.

  29. here is another crazy idea, cut spending and permanently get rid of the gas tax. but I guess the definition of libertarian is so wide now that you can be for taxing individuals and still call yourself “libertarian.”

  30. I have this crazy idea that a person doesn’t get rights until they are born alive, ie living outside the person. until then they are just a potential person and protecting a potential makes as much sense as starting pre-emptive wars over a potential. either way, I view abortion as a medical procedure and I believe the government has no right to regulate or control medicine.

    If you read the Old Testament, some people and one Deity felt that a person doesn’t get rights until they’ve grown up and moved away from their parents, and until then a medical procedure called “stoning” should be applied to recalcitrant youth.

    Fortunately, we no longer hold this callous attitude toward life, at least for some classes of living humans.

  31. Hacha Cha,

    The 9th doesnt mention states. Thats the 10th.

  32. fyodor,
    Claiming the 9th amendment applies to abortion is hella stupid. The 9th is about protecting rights enjoyed by the People without having to spell them all out. The People had never enjoyed a right to abortion (especially in Texas) prior to the SCOTUS shitting one.

  33. Okay, guys (Stalin, Cha et al.), I know you’re all super-libertarians and whatever, but get your heads out of your asses. Gas taxes only go to repairing roads. I want my government roads to be drivable, so there’s no room to decreasing spending unless you like poorly maintained roads. You could argue that governments shouldn’t even own the roads. Hey, I’d like privately owned roads as much as the next libertarian. Private developers have the incentive to buy land for building roads and use it as a cross-subsidy for other land they own, or they can force nearby owners of land to pay for use of the road. Whatever the situation, that doesn’t change the fact that they do, and at this point, nobody would probably want to buy already established roads. Also, if you lower taxes 18 cents, the gas companies will just increase the price of gas probably about 13 to 16 cents because the supply of gasoline is very inelastic. 49% of the nation knows more than you guys on this issue. That’s saddening. And I thought I could give a good reason why democracy is a bad idea without completely hijacking the thread. Apparently I haven’t been very realistic lately; I forgot that most libertarians have lost touch with reality.

  34. Warren,

    The People didn’t enjoy a number of rights until courts, under (mostly English) Common Law first, uh, spelled them out. Long before there was a Constitution.

    However, there’s an inherent problem with applying the 9th Amendment to abortion which I’ve described and then Prolefeed did too at 4:25.

  35. Daniel Reeves,

    The money raised by the gas taxes go into the general treasury and are just credited to the trust fund. iN the absense of a gas tax you could get rid of a program of matching size and credit the same amount of the general treasury to the trust fund.

    Second, the fund has turned into a joke. Congress is using it as its own piggy bank and not even using the money raised from gas taxes to fund the highways. EVEN IF WE KEEP THE GAS TAX THE HIGHWAY TRUST FUND WILL BE BROKE BY 2009!!!

  36. I very much respect reason.com, but that article was ridiculous. Did handicapped people have rights? Do deaf people have rights? Why don’t fetuses have rights?

    Madison never breathed a word about abortion. In fact, back in the day, many states had laws criminalizing abortion.

    Don’t like abortion? Fight it in the states. Like abortion? Fight it in the states.

    The Constitution is neutral.

  37. “Do we have the right to drink apple juice? How about the right to grow a mustache? More crucially, what about the right to be left alone?”

    In the abortion context, the better analogies would be (a) the right to keep slaves, (b) the right to perform medical experiments on said slaves, (c) the right to be left alone by the government while doing the foregoing.

    “. . . I view abortion as a medical procedure and I believe the government has no right to regulate or control medicine.”

    And cannibalism is a culinary procedure.

    Keep your laws out of my kitcnen!

  38. Second, the fund has turned into a joke. Congress is using it as its own piggy bank and not even using the money raised from gas taxes to fund the highways. EVEN IF WE KEEP THE GAS TAX THE HIGHWAY TRUST FUND WILL BE BROKE BY 2009!!!

    I’d much rather have that than taxing other people for pork, seeing as most of the tax burden is paid for by the gas companies and it also helps lower carbon emissions in the long run as consumers find ways to save money.

  39. Daniel Reeves — I live in Hawaii. They eliminated the GET tax on gas, which was running about 15 cents a gallon. Prices of gas immediately dropped about 15 cents a gallon, and since then the relationship of Hawaii’s average gas prices compared to national average gas prices has stayed about 15 cents a gallon lower than before the GET cut.

    If you reduce the cost of producing a gallon of gas by cutting the tax seized by government, the price drops. It’s simple economics backed up by the recent real-world example I cited.

    i believe javier did a good job pointing out the decoupling of gas tax revenues from actual road maintenance, so I won’t address that fallacy of yours.

    Now, if federal road maintenance was solely funded by the federal gas tax, and that gas tax money couldn’t be spent on anything else, and there wasn’t a huge surplus built up of unspent money, and a federal backlog of road maintenance was out there — then you’d have a fucking point.

  40. profleed, this is much different than a permanent tax reduction. It’s a tax reduction only when there’s a higher demand for the good. It won’t cut prices, even relative to what they would be in the summer without the tax cut. I don’t think you understand how inelastic the supply for gas gets. Gas companies are reserving their gas just to pump it out over the summer. That’s what they always do.

    But don’t listen to me. Listen to the experts.

  41. ed | May 5, 2008, 3:37pm |

    Tell ya what…make me King and all your troubles will be over.

    Deal, ed. The good news is that you’ll be a King. The bad news is that you’ll be Larry King.

  42. I think I remember appeal to expert as a fallacy in my critial thinking class. I’m not buying into the idea that the gas companies will raise the price just because the tax is suspended. The price may increase for market reasons. With the cut, it would be value + increase – tax. Without the cut, value + increase + tax.

    What kind of expert would claim that the gas companies would raise the price twice, once to steal the peoples rebate, then a market value increase? A conspiracy expert? And it would be stealing the peoples rebate since that savings would be meant for the people and not the companies.

  43. Deal, ed. The good news is that you’ll be a King. The bad news is that you’ll be Larry King.

    Which is slightly better than being Don King.

  44. The point of the Ninth is to protect unenumerated rights. Abortion isn’t one of those unenumerated rights, because it’s about weighing two separate and conflicting rights — the right of a women to make decisions about her body, versus the right of an unborn child / fetus / lump of flesh to stay alive.

    Why would any person have the right to use my body against my will for any purpose?

  45. “Why would any person have the right to use my body against my will for any purpose?”

    Why would any person have the right to use an innocent baby’s body against its will for any purpose?

  46. I view abortion as a medical procedure and I believe the government has no right to regulate or control medicine.

    Yet, somehow, I doubt you are complaining about licensing of physicians, nurses, etc., the FDA, or the truckload of regulations published by the Center for Medicare/Medicaid Services.

  47. The abortion issue hinges on whether a fetus is a living human being with a natural right to live or not. If it is, then its murder which is crime handled at the state level. If its not then banning abortion is a threat to privacy and is certainly not something that needs to be enforced at the federal level. All these arguments about amendments and constitutionally defended rights are pointless. Either its murder or it isn’t, end of story.

  48. Yet, somehow, I doubt you are complaining about licensing of physicians, nurses, etc., the FDA, or the truckload of regulations published by the Center for Medicare/Medicaid Services.

    I do.

  49. All these arguments about amendments and constitutionally defended rights are pointless. Either its murder or it isn’t, end of story.

    Yep, and just like self defense laws, its best handled at the state level. What would be self defense in my state would be considered murder in some others.

  50. Why would any person have the right to use an innocent baby’s body against its will for any purpose?
    Nobody is using any baby’s body for anything. I simply will not give my consent to any person to live inside my body. If you cannot survive without using my body to do so, then you do not have a right to survive without my consent.

    It’s not an exact parallel, but I also cannot be forced to give an organ to another person, even if I am the only possible donor and they will die without it, and even if my own negligence caused them to need the transplant. This is true no matter how closely related I am to them. You can think I’m a jerk for not donating to them, but you can’t use police powers to force me to do it.

  51. tigre,

    We’re talking in the context of a common-law legal system in which I have the right to tie my boat to your dock during a storm if that’s the only alternative for saving my property. To be sure, I have to pay you compensation for the use of your dock. Or if there’s a sick guy in your house adn throwing him out would kill him, you have an obligation not to throw him out, although you have the right to demand proper compensation.

    In this connection, the common-law requirement that you keep the fetus inside your body, if that’s the only way he or she can live, can be put in perspective. Naturally, the child is considered to have at least moral duties toward its parents, and their obligations to him continue during the child’s minority – they can’t just throw him out in the snow, at least not after birth.

    Of course, you can say the common law isn’t properly libertarian, but historically, it has been very respectful of property rights.

  52. Unless of course banning abortion is really intended to punish women for having sex out of marriage, laws banning abortion should accompany strict “Good Samaritan” laws that require you to risk your life for any and every stranger who needs rescuing that you happen to encounter. After all, failure to do so would essentially be murdering them.

  53. No, not if they’re not on your property/body where you have responsibility for them.

  54. If parents thrown their child into the snow on the grounds that they can’t be conscripted into caring for him or her, should they be prosecuted?

  55. Local, state and federal governments variously ignore the constitution’s explicit directions and prohibitions: They create ex post facto laws, restrict freedom of speech at many levels, infringe the right to bear arms, infringe the right to keep arms, fail to provide speedy (or any!) trial or representation, instigate searches w/o warrant, generate warrants w/o probable cause, deprive citizens of property w/o due process, arrest citizens for assembling peacefully, turn the commerce clause into a mockery of itself…

    The *reason* we can’t control the various levels of government is twofold; first, the constitution has no “teeth”, that is, should a legislator write something unconstitutional into law (such as a prohibition against keeping some form of arms), the law takes effect anyway, and barring a sympathetic judge, remains in effect unless someone can show it has “harmed them” (not always possible, for instance, wiretaps and other sub-rosa surveillance) and pushes it through every level of court available, during which process the legislation is often left intact and committing harm for which there will be no recompense if, against all odds, it is found to be unconstitutional. Even if that happens, nothing at all stops those same legislators from simply putting another law on the books that accomplishes the same thing.

    It stands to reason that since we can’t control government actions with regard to what the constitution clearly mandates — there is no hope whatsoever with regard to controlling it when it comes to issues not directly addressed within the document. They’ll just make up whatever serves the government’s current agenda and then implement it.

    Look to history: The message is clear and consistent. This is what they do. Day in and day out.

    The only way this country will ever get on the right track is to create a structure that ensures liberty, has very sharp teeth aimed directly at those in office who would infringe those liberties, and eradicates the problem of letting uninformed nincompoops vote on issues they haven’t got the first clue about.

    America has created a unique problem (which it tries to get around several ways, but never succeeds — super-delegates, electoral college, representatives, senators, congressional staffs) by fostering the idea of one person, one vote (which itself is a consequence of the ridiculous idea, generalized, that all persons are created equal.) The root issue is that in this country, on any one issue, there are very few experts; consequently, the uninformed outvote the experts every time. Or in other words, if you don’t qualify voters, you’re going to have a world dominated by the instincts and intuitions of the easily led majority of non-experts as they do what the government tells them. Which — no surprise — is a precise description of exactly what we have today. In the general population, in the town councils, and in the state and federal legislatures.

    What strikes me as most befuddling is the attitude a completely broken system of rules that are not being followed can be fixed using the rules of that system.

  56. How exactly would the state enforce anti-abortion laws? Will it monitor every pregnant woman to make sure she doesn’t use abortifacents or accidentally fall down some stairs? You would think if women are willing to shove a hanger up their uteruses, then all the information available on the internet to miscarry in a less dangerous manner than stirring up a metal stick between their legs would be pretty promising. Is it going to be like that one Catholic country in S. America (they all run together with their superstitions and such) where any woman who miscarries gets her uterus and vagina examined? Let’s just hope a doctor does it instead of a priest. I’m sure here in Texas people would be all for the anti-abortion laws, but would they want the extra government, which means extra taxes?

  57. zoltan,

    Yes, that’s right, supporting a law against X conduct automatically and logically requires that I support the abolition of the presumption of innocence.

    But good call in pointing out that anti-abortion laws cannot be enforced. I bet that the National Abortion Rights Action League, the American Civil Liberties Union, etc. are all going, “of course! It’s unenforceable! Never mind, then, we won’t bother trying to block the enactment of anti-abortion laws.”

  58. We’re talking in the context of a common-law legal system in which I have the right to tie my boat to your dock during a storm if that’s the only alternative for saving my property. To be sure, I have to pay you compensation for the use of your dock. Or if there’s a sick guy in your house adn throwing him out would kill him, you have an obligation not to throw him out, although you have the right to demand proper compensation.

    My body is different than a dock or a house. There is no adequate compensation here. Compensation of any kind given by the eventual baby (assuming the pregnancy isn’t one of the ~25% that ends in natural miscarriage or stillbirth), would not be given in the case of adoption, which would be a common outcome of forced pregnancies. In that case, the compensation would be given to the person who consented to raise the child.

    No, not if they’re not on your property/body where you have responsibility for them.

    Now I have responsibility for every person that comes onto my property or is trying to use my body for something? What if I didn’t invite them there? What if they’re a threat to me? Let’s say the lock on a window malfunctions and some ill person manages to get in, potentially threatening my health. Am I legally required to let them stay?

  59. tigre | May 5, 2008, 7:04pm | #

    “What if I didn’t invite them there?

    In well over 99% of abortions, you DID invite them there. Actually, you actively took part in putting them there without their consent. So your analogy falls flat on it’s face.

    Women (by self-report, so likely exaggerated) only claim about 3% of abortions have anything to do with their own health. 3% are claimed to be because of the fetus’s health, though I am willing to bet many of these fetuses would prefer a different course of action. The other 93+% are simply birth control – as often as not a second or third one from the same women, only rarely from women too young too know better.

    The only time abortion is morally permissble is when the fetus stands no reasonable chance at a meaningful life. The case of rape is murkier, but the right to live still trumps the right to being in “danger”, and any case, any exception for rape would result in the exception swallowing the rule…how could you possibly judge this issue in a timely manner?

  60. Does the Constitution actually enumerate a right to bear arms? One could argue that language both ways, I think.

  61. In well over 99% of abortions, you DID invite them there. Actually, you actively took part in putting them there without their consent.

    If I actively take part in injuring someone and cause them to need an organ donation or blood transfusion I still don’t have a legal requirement to give them my organs or blood. And if abortion were illegal, either all abortions would be treated the same, or the government would have to investigate the circumstances of your sexual habits in order to determine the reason for the pregnancy and subsequent abortion.

    The only time abortion is morally permissble…

    I’m not concerned with morality here. We’re talking about legality. Very different things.

  62. In well over 99% of abortions, you DID invite them there.

    Going back to this, inviting an embryo/fetus into your body implies consent, as in the case of people intentionally trying to get pregnant. Finding that a sperm cell has penetrated your ovum, regardless of precautions taken (because contraception is not always reliable) does not imply consent and is not an invitation.

  63. The problem with abortion is it infringes on the rights of the unborn child.

    Those two consenting adults made a choice, a choice to have sex. That choice has consequences. A baby. Thus we live in a society that condones consequences for actions. Thus they have forfeited their rights as soon as that baby was conceived, because it was their choice.

    You must live with the consequences to your actions!

  64. Where is the argument for rights of a fetus?

  65. To be more specific, no one has argued whether a fetus has rights and how those rights are derived from babies and adults. Plus, no one has answered how the government plans to enforce these actions and with whose money. And how exactly are they going to deter other methods of abortion that don’t involve a surgical procedure?

  66. Finding that a sperm cell has penetrated your ovum, regardless of precautions taken (because contraception is not always reliable) does not imply consent and is not an invitation.

    Contraception is not always reliable. This is known. Hopefully it should be written on the package. In having sex with contraception you have made a choice to engage in an activity which is known to have a non-zero probability that a pregnancy will result.

    Society can still expect some minimum level of responsibility from persons engaging in such activity.

  67. If I actively take part in injuring someone and cause them to need an organ donation or blood transfusion I still don’t have a legal requirement to give them my organs or blood.

    That is actually not a bad idea.

  68. some dude:

    Lots of people take the responsibility to abort the mass of cells instead of being irresponsible parents for hopefully ~18 years. It’s like the bailout, those who conceive accidentally have the choice of dealing with it on their own (keeping the fetus, having the child, raising it for 18 years OR aborting the fetus) or they can ask the government to give them handouts for the next 18 years. I prefer the former 2 choices.

  69. Historical thought (or note) first: it seems to me that, reading the Federalist Papers and others of the time, the lads who wrote the Federal Constitution thought no Bill of Rights was needed because the Constitution limited the power of the national government so severely that it could never invade those rights. The pessimists of the day prevailed (as well as the pragmatic farmers of Pennsylvania and New York, eh?) and the first Congress wrote up the first ten amendments and sent ’em out to the states, poste-haste.

    There are two parts to a defense of human rights in the American political and legal structure. First is the claim that the government – at whatever level – lacks a lawful (i.e., constitutional) delegation of authority to pass the law, either because the measure exceeds the authority already delegated to it by the constitution or other charter, or because no delegation of such authority was made. The second of those arguments is rarely heard, as least in the last 100 plus years. A use of that last argument could use the 9th and 10th Amendments effective, along with the observation that the wording makes plain the implication in the rest of the Federal Constitution that any power not specifically delegated to the national government was withheld.

    The second basis for objection is that the new law is contrary to the rights protected in the constitution, either those specifically enumerated or those which exist but are not enumerated. This is the last argument which ought to be used, as its use is most effective in appeals from unfavorable trial court decisions and rulings.

    One thing further to note: there is no formal legal principle, but observe how over the years the limitations on the national governments’ powers have been imputed to the states’ power, as the national government’s power actually grows. I have several million more words on the issues but will refrain.

    As to abortion, as several of the commentors have already said, once one decides when life begins for the child in the womb – conception, third trimeseter, 40 days after birth (Japanese traditional view), whenever – then one has a basis for deciding whether abortion is morally proper or not.

    Individually, were I a woman, I confess I would unequivocally decide the instant when I knew and was certain – subjectively, to be sure – that a new human life had taken root in my uterus. I confess that I cannot conceive (pun not intended) of a situation wherein – were I a woman and pregnant – I could agree to the killing of the child growing beneath my heart. I can imagine situations wherein it would be more convenient for me – in that hypothetical universe wherein I were female – to kill that unborn child, but I am utterly horrified by the contemplation of the consequences of the last 30 plus years of legalized abortion brings to my minds’ eye: row upon row of graves for tiny caskets; perhaps as many as half of an entire generation of Americans dead. And I speak as a Vietnam war combat veteran, one of the much-maligned “baby killers”. Not a rational argument, but a heart-felt one; can’t put that in a brief to the Supreme Court, but, oh!, how much do such things influence politics?

  70. Unfortunately, Lloyd, your last sentence is quite possibly the worst thing about politics. That most people don’t make their political decisions based on reason and rationality is the problem. See Election 2008 for the latest appeals to emotion and heart-rendering manipulation. For me, I’d like to think of 30 years of women who weren’t fettered by the state into forcible pregnancy to term and birth. Then again, I do hate appeals to emotion.

  71. zoltan,

    You are not convincing me of anything. You are only making me angry and disgusted.

    Aborting their nascent procreation is not “being responsible.” Those who conceive have already made their choice. I am not in favor of government handouts either. That would be a moral hazard.

  72. Common law tradition and definitions of rights do not necessarily exclude abortion.
    The “born alive” standard for personhood has a long tradition in common law. In addition, it is incorrect to suggest that abortion has always, by tradition, been forbidden or illegal. Abortion was not criminalized in most states until the later half of 19th century. Abortion was fairly common, often tolerated, and NOT criminalized throughout most of common law history, even very far back. The early Christian church, although opposed to birth control, was unclear about abortion. The doctrine settled on the idea that abortion was ok before “quickening,” when a woman could feel the fetus move, and English and American common laws followed this tradition. Laws criminalizing abortion came with the advent of professionalized medicine, partly to criminalize midwives thus giving doctors a state-supported monopoly of expertise over pregnancy and birth. This push also linked up with moral reform efforts directed at obscenity and concerns about the race suicide due to the declining birthrates of middle-class women. Criminalizing abortion was seen as the right of the state to govern and manage the health and morals of the population via controls on family, reproduction, and sexuality. In doing so, the will of the state is born by women’s bodies.

    Moreover, the issue at hand in the Roe case was not whether abortion was murder. This is a moral question posited by the anti-abortion movement. The case centered on the question of women’s privacy rights versus the state’s interest in protecting maternal health (with abortion as a potential threat to it) and fetal life. This is not the same thing as murder or a right to life. The court gave this (unfortunately rather poor) defense of the right to abortion in order to avoid the question of when life begins. A better defense should have been, as tigre suggests, the issue of bodily autonomy and self-ownership.

  73. Rob: “Does the Constitution actually enumerate a right to bear arms? One could argue that language both ways, I think.”

    Yes, the constitution enumerates a right to bear and keep arms, or two rights, one to bear and one to keep.

    The 2nd amendment is composed of two distinct lexical parts; the first part is explicatory; it provides a rationale for the second part.

    The first part reads: “A well regulated Militia, being necessary to the security of a free State,”

    To understand this, we need to consider the language of the day. “Militia” was a healthy (male) person who could bear arms. “Well regulated” meant similar or uniform in capability and armament. Laws of the time referring to militia went so far as to specify how much powder, what type of weapons, they should bring if called upon (not be supplied with, but *bring*) etc., in order to bring about that “well regulated” condition.

    So taken as a whole, one way to read the first part is that in order for citizens to maintain a free state or condition for themselves, they must be consistently armed and capable as a group of individuals.

    The other way to read it is that in order for a “free state”, meaning a free nation-state, to be maintained, the citizens must be consistently armed and capable so that they would be ready when called upon.

    Either way, at this point we are left with nothing but an explanation of why the amendment is in the bill of rights; so far, not even a hint of what the amendment requires of the government. And in the end, like the preamble, “why” isn’t a matter that defines a constitutional issue, what we are looking for — both as a government and as a people — are instructions as to what the government can and cannot do. So onward:

    The second part, which is the operative part of the amendment (meaning, it tells the federal government what actions are covered by the amendment, what it can and cannot do, and in what manner) simply reads:

    “the right of the people to keep and bear Arms, shall not be infringed.”

    This is crystal clear, the meaning of the words and the entire phrase have not changed one whit since the day it was penned. “Shall not be infringed.” Say it out loud. Roll it around on your tongue. See if you can make it mean something that allows the government to tell you you can’t own, store, and carry a knife, a pistol, a bomb, or a rifle. Good luck with that, by the way. Can’t be done.

    “Infringe” meant (and still means) to erode at the edges — so they were very, very serious about this issue. They didn’t want *any* erosion of the 2nd.

    A short discussion of what “arms” meant at the time is worthwhile here, too. At the time, individual citizens could (and did) own rifles, pistols, cannons, armed frigates with multiple decks of cannon and other arms, fused bombs, fire bombs, knives of many varieties, brass knuckles, barbed chain, staffs, swords, and various hidden weapons such as daggers and fighting canes. And more.

    Yet the 2nd says “arms.” With the arms of the day in mind, and reading the explicatory phrase as “for the security of the free state for themselves (personal liberty, essentially)”, this all makes perfect sense. A well armed person is a person one doesn’t lightly cross.

    Reading the explicatory phrase as “for the security of (the nation-) state (meaning the government), the broad protection for all arms in the hands of citizens no longer makes sense. Citizens with arms are, when government is out of hand, a threat to the government. As King George would quickly inform you if you could ask him, and as the authors of the constitution clearly still recalled from recent experience.

    Now is the time to ask yourself: Do you think they were given to putting amendments into the constitution that make no sense? Also ask, in the context of the other nine amendments that comprise the bill of rights, all of which are written to protect the various liberties of the citizens, does it make sense that the 2nd would have been put there to protect the *government*? Once you’ve asked that, go read the Virginia Constitution, from which the 2nd amendment was derived.

    Looking further into the genesis of the amendment, one will easily find in the writings of the authors of the constitution the fundamental reasons why it is there. In a nutshell, it was felt that an armed populace was a check against an out of control government — like King George’s. That “free state” is not about maintaining safety for folks like King George; it is about the state of liberty that a citizen could work to maintain *despite* people like King George.

    Moving forward to the present day, we find laws that directly infringe the right to bear; that is, you can’t walk into the town square (or even outside your home into your yard) with a rifle or a pistol.

    We also find laws that infringe the right to keep; that is, you are not allowed to own a rifle or a pistol unless the government decides it wants you to.

    This in turn preempts the right to bear *your* arms, since you can’t have any, but it doesn’t in and of itself infringe your right to bear a weapon of mine. And there are laws that do both.

    And of course there are those laws that attempt to say that a sawed off (short barreled) weapon is not an “arm” in the sense of the 2nd, which is of course absurd — they had numerous models of short barreled weapons at the time — or that citizens have no right (for instance) to own a tank, a warship, an infantry piece or other relatively heavy weaponry.

    Nukes? I would be one of the first to vote in favor of amending the 2nd to exclude private ownership of nuclear arms, and if that was the sum total of the amendment, I expect it would pass without significant objection by anyone. Biological weaponry too, because they are inherently uncontrollable weapons. I call nukes and bio-weapons “fire and regret” (a word play on “fire and forget” self-guiding arms) weapons for that very reason. But the 2nd – as written – provides no leeway whatsoever to prohibit private ownership of either at the moment.

    Now, the authors of the constitution were perfectly well aware that circumstances change, and they provided a means to change this amendment (and anything else) should circumstances bring the population around to such a mindset: This is article V, entitled (rather clearly) as “Amendment.” Go figure, eh? Whatever could THAT be for? (cough.)

    It is absolutely reasonable to attempt to amend the constitution. That’s why they took the time to provide a mechanism to do so. They *wanted* us to when it became needful. They didn’t want to lock us into the views of the day without any way out. And we should pursue amendment when we see fit.

    On the other hand, it is absolutely illegal, in the most basic sense of the idea, to create legislation that does things the constitution forbids. The constitution is considered the “highest law of the land”, a phrase you may have heard already.

    As I pointed out in my previous post, however, the constitution is a toothless document — it provides for no punishment for its intentional violators, and does not specify an even slightly adequate mechanism for dealing with unconstitutional legislation — and in that sense, the authors failed the nation in a most profound manner.

    So no matter what the 2nd says and means, what we are stuck with is a government that writes any law it wants to, inflicts the consequences as it chooses and upon whom it chooses, and we have absolutely no means to counter these actions because the executive, judiciary, and legislative branches have all made it perfectly clear that they are operating well outside the bounds of the constitution and plain to continue doing so.

  74. You are not convincing me of anything. You are only making me angry and disgusted.

    Aborting their nascent procreation is not “being responsible.” Those who conceive have already made their choice. I am not in favor of government handouts either. That would be a moral hazard.

    somedude, I couldn’t give two shits whether you’re getting your panties in a twist. You’ll have to argue whether a fetus is a “responsibility” in the first place. A woman conceives and doesn’t intend to can do whatever the fuck she wants with the cluster of cells that happen to be dependent on her body to live. From that view, it seems that it’s her right to decide whether something gets to live off her body and consume her nutrients.

  75. zoltan: somedude, I couldn’t give two…

    I just thought you would like to know your style was ineffective. A little feedback is all.

    A woman conceives and doesn’t intend to…

    I’ll tell you what she intended to do. She intended to engage in activity that has a 14%* chance that she will get pregnant. She gambled.

    *For typical example using a condom.

  76. Right, like your incredulous self-righteousness is remotely helpful feedback. You can play with ellipses all you want, but the actual sentence is pertinent. You don’t intend to get pregnant, fertilization occurs, a cluster of cells develops that depends on the body for survival. The embryo and fetus are part of her body and nothing else. You can play fun word games like anyone else and think you’re clever (yeah, like saying “She gambled.” is really going to hit me square in the chest) but it’s not going to do any good. Plenty of people engage in activities that can hurt or help their bodies and their bodies alone, “gambling” or not.

  77. This is one of the worst articles to appear on this site. The real libertarian perspective (that this is an issue of state’s right, NOT one to be decided by our unelected supreme court), is hardly represented here. The author has a right to express himself, but when I come to reason.com I expect to read opinion and analysis from libertarians or otherwise conservative viewpoints. This is the kind of drivel I would expect from huffpost or dailykos.

  78. -“real” libertarian perspective
    -comparison to uber-liberal websites

    Does that mean two drinks?

  79. zoltan,

    You can play fun word games like anyone else and think you’re clever . . .

    Pardon my use of ellipses, but the rest of the sentence is irrelevant. I think that accusing another of playing fun word games while you yourself do the same is bad.

    Specifically, I mean your referencing a fetus, or to use another term, “pre-natal human being,” as a “cluster of cells,” and your usage of other euphemisms in this discussion. You should be aware that everything in this argument hinges on whether you believe a fetus is a human with a right to life. To use terms uncommon to the discussion to bias it in your favor and is dishonest.

  80. “But what about the Ninth Amendment, which states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, the Constitution itself recognizes that we possess far more rights than any document could ever list, a situation that the legal scholar Stephen Macedo has likened to islands of government power “surrounded by a sea of individual rights.”

    The problem that arises when someone invokes the 9th Amendment to claim something is an unennumerated “right” invariably is that anyone else can quite legitimately ask, “What quailifies you as a superior judge of what is or is not qualified as a “right”? Since the alledged “right” in question is not specifically ennumerated, there is nothing to go on to prove that it is or should be included or is something that is inherently more important than some other thing that someone else wants to claim is a “right”.

    There may be lots of unnenumerated rights but the list is not infinite. Do billionare hedge fund managers have a right to buy their own personal F-15 fighter planes fully armed and equiped with missles and bombs?

    If not, then why not? There is no Constitutional language to go by that proves that should be any less (or more ) of a right than abortion.

    And what about affirmative rights? I have heard liberals point to the 9th to claim there are all sorts of affirmative rights such as a right to healthcare.

    Now in the specific issue of abortion I will note that state abortion laws go way back. All the way back to the 1820’s as a matter of fact. That was a time when some of the founding fathers who were involved in drafting the Constitution were still alive. I am not aware of any evidence where any of them tried to get any of those laws overturned as “unconstitutional”.

  81. Shannon Love: Exactly right on both counts. To me, that’s the end of the discussion. Now everyone should go out and try to win people to their side. For the sake of the unborn I hope those who believe a fetus is a natural human and deserving of the same rights as any other person are more convincing. I doubt they will be; selfish gain has a way of twisting the humans’ thoughts.

  82. James, take a look at the definition of the word fetus. Since most abortions occur at this time in development (and sometimes in the embryonic stage, hence the “cluster of cells”), it’s the correct scientific term to use. I’m reminded of the House episode when everyone keeps calling the fetus a “baby” or “child” and House must continually correct them. “It’s a bay-by” is clever word games because it is, in fact, incorrect terminology, playing on emotional responses to living children outside of the womb which people like to identify the fetus as. You may feel that the scientific term is “uncommon” to you but the term is the probably the most unbiased definition. To wit, I’ve used fetus in all places when referring to such, except “embryo” and “cluster of cells” once, which is the reality of the situation at conception.

  83. The Christ-Faggotry will stop here. There is no excuse for this misogynist bullshit.

    I will fucking attack the Pope-queer types (TallDave – the homo) until they fucking RELENT FROM THEIR FAGGOT activity!

  84. The POPE is a fucking Nazi!

    Stop this BULLSHIT!

  85. zoltan,

    Read it again. My objection was to the use of “cluster of cells” rather than fetus.

  86. I will fucking attack the Pope-queer types (TallDave – the homo) until they fucking RELENT FROM THEIR FAGGOT activity!

    Wait’ll they get a load of ME!

  87. “misogynist bullshit”

    Here’s a quick quiz you can take at home.

    Sex-selection abortions throughout the world kill (a) mostly male fetuses, (b) mostly female fetuses, (c) about the same, (d) I didn’t know there were any sex-selection abortions.

    If you answered (b), then congratulations, you got it right, and now you know who the true misogynists are.

  88. James, take a look at the definition of the word fetus…. it’s the correct scientific term to use.

    Scientifically, you are an ape, but I won’t hold that against you.

  89. I’ve nothing to add to the discussion as I think Shannon Love clearly states the issue above.

    However I did want to offer that the word “fetus” is latin for “offspring”, or at least that’s what I read some time back. So those of you debating terminology can make of that what you will.

    Cheers.

  90. To my great surprise, this abortion thread doesn’t suck nearly as bad as most of them do.

    Except for The Shriek, there.

    I mean, there was actually some interesting discussion of constitutional law and stuff.

    Also, a magnificent comment by “Ben” at May 5, 2008, 9:24pm.

  91. “I can’t speak for anyone else, but I will not suddenly start driving more if gas starts to decrease by up to 18 cents per gallon.”

    Once the gas tax hiatus is implememnted I’m going to go out and buy a Hummer (the car) and just drive drive around aimlessly all day. The absence of a gas tax coupled with the $600 rebate check just makes the above prospect all too tempting and affordable.
    But I won’t drive in South Dakota. F-them.

  92. “There may be lots of unnenumerated rights but the list is not infinite. Do billionare hedge fund managers have a right to buy their own personal F-15 fighter planes fully armed and equiped with missles and bombs?”

    Yes, of course they have such a right. You have it too (though perhaps not the funds.) See the 2nd amendment. Such a transport with weapons systems is directly comparable to a frigate or a wheel-based weapons platform, it’s just quicker. The 2nd states that the right to keep and bear arms shall not be infringed. There’s nothing there that says “unless said arms are in the category of… [_____].”

    “There is no Constitutional language to go by that proves that should be any less (or more ) of a right than abortion.”

    Wrong. The right to keep and bear arms is enumerated. The right to control one’s body is implicit.

  93. “The real libertarian perspective (that this is an issue of state’s rights)”

    Oh, come now. I would quite confidently argue that a “real” libertarian perspective is that this is an issue that does not fall to the government at all, because it is, from conception until until birth, an issue of what one does with one’s own body, where governments have no legitimate rights whatsoever at any level with regard to a free person.

    I would argue that these cells are yours, each and every one, from the time when there are just a few of them right up until the time when they threaten your well-being on the way to an existence physically independent of your body’s systems and superstructure via normal birth, cesarean, etc.

    You may have *a* valid libertarian viewpoint (though it does not seem so to me) but you certainly do not have *the* valid libertarian viewpoint. Personally, I’d rate your viewpoint as mommy-state controlling and rank it very high on the list of “invasive government” outlooks.

  94. tigre | May 5, 2008, 7:29pm | #

    If I actively take part in injuring someone and cause them to need an organ donation or blood transfusion I still don’t have a legal requirement to give them my organs or blood. And if abortion were illegal, either all abortions would be treated the same, or the government would have to investigate the circumstances of your sexual habits in order to determine the reason for the pregnancy and subsequent abortion.

    If you severely injured someone, you would be liable for their injuries. If you, by some bizarre coincidence, were the only person who could donate the organ that would save them, and YOU SAID NO, no jury on earth would have a drop of mercy upon you. You would receive maximum jail time for any crimes committed and be sued into backruptcy so deep that it would make the national debt look like a molehill.

    I’m not concerned with morality here. We’re talking about legality. Very different things.

    No, we are talking about what SHOULD BE legal – and that is exactly the same question as “What is moral?”.

  95. Ben | May 6, 2008, 6:00pm | #

    “The real libertarian perspective (that this is an issue of state’s rights)”

    Oh, come now. I would quite confidently argue that a “real” libertarian perspective is that this is an issue that does not fall to the government at all, because it is, from conception until until birth, an issue of what one does with one’s own body, where governments have no legitimate rights whatsoever at any level with regard to a free person.

    True libertarianism says nothing about abortion at all. There are many differing ways to say it, but it libertarianism ultimately boils down to a silver-rule like “Do not harm others”…yet the definition of “others” will always have gray areas, and nobody, not even libertarians, should believe that the definition of “others” should be left up to each individual to decide. Otherwise, I or anyone else could decide YOU don’t count and violate your rights with impunity.

    It IS the responsibility of society, through our elected officials and governments, to decide what entities deserve the protection afforded by rights, and our responsibility as individuals to respect these decisions even if we disagree.

  96. On the gas tax – I like the idea of eliminating almost any tax, but there are two good reasons to keep the current gas tax in place. One reason is not libertarian, the other is.

    The non-libertarian (but NOT anti-libertarian) reason is that the proposed holiday won’t last long enough to drive total gas prices down. And it will have the downside of depriving money for needed infrastructure. As libertarians, we don’t have to be against good management of existing policies in order to be against the existing policies. We don’t need to destroy something without being ready and able to put something better in its place (e.g., Saddam).

    Secondly, if you are among those libertarians that accepts that global warming is likely a real phenomenon, gas consumption has very real negative externalities. If taxes drive down consumption at all, then choosing gas as a focus of taxation is a wise decision. Further, for as long as the government maintains primary responsibility for building and maintaining roads and air pollution prevention, the fairest way to pay for those things is to tax those the most who use the roads and damage the air the most.

  97. With regard to the 9th – – it is a reading manual for interpreting the Constitution’s bill of rights as the 10th is a manual for reading the original constitution (without any amendments, which came later). It expresses in English an old Latin phrase quite familiar to the educated at the time -but also as a legal statutory interpretation rule – the expression of some(things/rights/whatever) does not mean the exclusion of others, not expressed. “Expressio unius est exclusio alterius (not unis)” or something in Latin.

    Remember, as originally understood by the drafters (pre-Incorporation), the bill of rights was only a limitation on the federal government. Thus, in their spirit of liberty, the people who agreed to a limited federal government of “enumerated powers” via the constitution had a built in liberty protecting safety valve with the 9th that while the federal government (in the constitution that was passed earlier without the bill of rights) is strictly limited to its enumerated powers, the people’s rights were not to be construed as limited in number to those expressed in the previous 8 amendments.

    The next amendment, 10, prevents the same statutory interpretation to be applied by the federal government in an attempt to gain more power by blocking them at the path – any right not specifically enumerated to the (federal) government – is retained by the States or the people. There is no latin phrase I am aware of that expresses this- suffice it to say the function of the 9th is the exact opposite of the function of the 10th. One expands rights, the other restricts.

    Its really quite beautiful – and its a tragedy both amendments had to be trashed to justify our wildly expansive federal government. Compared to the other amendments around them (or before as it were) these two amendments are radically different in nature and are clearly guides on how to interpret the bill of rights & the constitution, respectively. The 9th clearly focuses on the rights of people and thus directs itself to how to interpret the bill of rights which contain general expressions of rights people retain vis a vis the government. Whereas the 10th tells us how to read and interpret the pre-amendment constitution that sets up the entire structure of government.

  98. “ultimately boils down to a silver-rule like “Do not harm others”…yet the definition of “others” will always have gray areas”

    The fact is, there is no “other” until the blastula or fetus is not parasitic upon your immune system, circulatory system, an integral part of your superstructure, a direct risk to your physical integrity, etc. There’s no gray area here. Consequently, there’s no legitimate place for a government to enforce the idea of “other.”

    Being pregnant isn’t like being a landlord. It’s the definitively personal act of growing a new liver, set of lungs, heart, brain inside your body from an undifferentiated clump of your own cells, which in turn remain intimately connected to your body with all the risks you can imagine, and then a whole bunch more you probably can’t, for the entire duration of the process. Until these parts are not physically part of you, they *are* you. All the physical risks are yours, and no one else’s. This isn’t hyperbole; this is scientific fact.

    Consequently, honest reasoning must take all of this into account. Doing so supersedes the appeals to emotion that lead to the “every sperm (and/or egg, and/or blastula) is sacred” argument and all of its derivatives.

    Ultimately, I can have my liberty and remain free of any interference from you until or unless I interfere with your liberty. The moment I tell you what you can do with your own body — which is *precisely* what I would be doing if I attempt to tell you that you cannot stop this parasitic process in your own body were you to make such a choice — I have metaphorically swung my fist at the space your jaw resides in and I am now over the line. Which puts my own life and liberty in jeopardy.

    That’s something to keep firmly in mind when the urge to argue for making decisions for and about another person’s most intimate and critical possession, their body, arises.

    If a person feels strongly at risk in the act of carrying to term, and I attempt to force them to do so, they may decide to take my head off for me.

    …and they’d be absolutely right to do so; I’d have been acting like just like King George.

  99. assuming that the pregnancy isn’t on of the ~25% that ends in natural micarriage or stillbirth

    I love this argument: because life is especially difficult for you (fetus in the early 21st century; three-year-old in still recent times), you aren’t really alive.

  100. Ben,

    You have an unwanted tenant? As it’s a proto-human, and not a virus or something irreconciably nasty, why don’t you just eject it? How do you jusify the unrelated act of murder? Surely “it’s very difficult to eject it without killing it” is not a moral principle that can stand the test of time.

  101. Julian,

    “you have an unwanted tenant?”

    It’s not a tenant. It’s a growth of your own cells. It can be a very dangerous growth. Removing it is no more “murder” than removing an infected gall bladder is, or taking out an appendix on a prophylactic basis. Until it’s out, it’s you.

    “why don’t you just eject it?”

    Ejection (with the goal of survival, which I presume you are implying) requires carrying it until it can survive on its own with all the attendant risks. Deciding to do that is the host’s right, of course, just as deciding *not* to do it is the host’s right. When you say “just”, you’re speaking as someone to whom the consequences are irrelevant; if the host dies, you continue on. That’s why the host’s choice has far more priority than yours.

    “how do you justify the unrelated act of murder?”

    I am unclear precisely as to what you’re asking me here. Would you elaborate?

    “Surely “it’s very difficult to eject it without killing it” is not a moral principle that can stand the test of time.”

    It may be that the host does not wish for it to survive. It may be the product of rape; of incest; of both; it may be debilitated or non-viable without measures that would unacceptably compromise the family or individual. It may pose a threat to the host via coupled immune systems, or in some other fashion. It may simply be entirely unwelcome and unwanted, and consequently not of sufficient value to the mother to undertake the numerous risks and compromises of carrying it to term.

    It’s not about imposing your morals, no matter how warm and fuzzy they may seem to you. It’s about the liberty to choose one’s own path for one’s own body.

  102. It may be the product of rape; of incest

    I also love this argument: because mommy doesn’t like you, you aren’t really alive. How much of pro-choice rhetoric is feel-good fluff-argument, designed to draw attention away from the real issue?

    It’s a growth of your own cells. — oh! Yes! Just like kidney cells or mole-cells! Except for the part where it is obviously not simply a growth of cells. If you believe that it’s ‘just a growth’ of the mother’s ‘own cells’, the world must be a very confusing place for you.

    Ejection … requires

    No, it doesn’t, and I don’t assume that. Abortion is a non-atomic action, logically divisible into ‘ejection’ and ‘murder’. After consideration of non-fluff arguments, I take ‘ejection’ as naturally legal even when the proto-human can be determined not to die on its own, even when its creation was intended by non-incestuous parents, even when it has no alarming traits, even when carrying it to term will not pose especially serious health problems for the mother. ‘Murder’, I concede as a technological unavoidability. The mother always has a right to not be a host — can’t even be bound by contract to be a host, unless you also accept slavery contracts — and if she can only effect this desire in a manner that kills the tenant, well, that’s just unfortunate. We should work harder on non-fatal extraction, have a baby market that can deliver the proto-human to people who want to take care of it, etc.

    The pro-choice fluff-arguments only exist to keep you from thinking rationally. If you support “life is really dangerous for them, so—” and don’t also support it with regards to very old Americans and young Africans, maybe you don’t actually support it at all. If you support ‘product of rape or incest’, why end the permitted murder at birth? If you support ‘serious genetic problems’ and don’t also agree with broader eugenics, maybe you’d rather engage in a separate discussion about when it is appropriate to ‘pull the plug’, and when parents may refuse to act as caretakers. Why remove the permission at birth? Certainly it’s just as ‘unfair’ if a one-year-old has a massively crippling brain injury. If you believe that a logically and physically distinct organism is ‘just a clump of cells’, go look in a mirror.

  103. @Julien

    [re: rape, incest]

    I also love this argument: because mommy doesn’t like you, you aren’t really alive.

    You are explicitly arguing for the right to coerce a woman to bear a child that has been forced upon her (and in the case of incest, carries significantly increased odds of being defective in some severe fashion.) That’s a non-starter based on liberty. Quite aside from the health issues. It has nothing to do with “mommy doesn’t like you”, it has to do with personal liberty, and here, there was no liberty even as to conception, much less with regard to carrying the blastula or fetus to term – we’re talking about one of the very most repulsive forms of coercion here. If the mother doesn’t care to carry the product of such a despicable act to term, not to mention having to deal with if it was born, then she should certainly be able to make that choice.

    It’s a growth of your own cells. — oh! Yes! Just like kidney cells or mole-cells! Except for the part where it is obviously not simply a growth of cells. If you believe that it’s ‘just a growth’ of the mother’s ‘own cells’, the world must be a very confusing place for you.

    You simply demean yourself and provide no additional foundation for your argument when you combine disagreement with ad hominem instead of supporting fact. It is a growth of cells. That is scientific fact and not open to significant debate. I am perfectly willing to say it may have considerable potential (and for that matter, it could turn into a serial killer, or just some twit who would happily steal people’s liberties in order to satisfy the fictional proclivities of an imaginary friend in the sky.)

    The very idea that you would weigh the fetus’s undeveloped and unknown potential against the mother’s developed and known potential and come down on the side of the fetus is anathema to me.

    If you support “life is really dangerous for them, so—” and don’t also support it with regards to very old Americans and young Africans, maybe you don’t actually support it at all.

    What “life is really dangerous argument” are you referring to? I have made no such argument, or at least, no argument I have made is familiar to me in the terms you present.

    If you support ‘product of rape or incest’, why end the permitted murder at birth?

    If what you were trying to say was “If you support ‘abortion for products of rape and/or incest’, why end the permitted murder at birth?“, then the answer is: Once the fetus is no longer part of her body, that fetus is no longer a physical threat to the mother. At that point, the liberty of the newborn becomes a stand-alone force of its own. This presumes that the mother was so generous – or foolish, or misled, or coerced – as to allow the blastula to develop into a fetus.

    if you support ‘serious genetic problems’ and don’t also agree with broader eugenics,

    Oh, I absolutely do agree with broader eugenics. From the casual eugenics of picking an intelligent, good looking, healthy mate that everyone engages in (or wishes they could – I certainly did), right down to the idea of, if and when the technology is available, editing out the tendency to go with emotions or superstition instead of critical thinking, ensuring a strong physique with significant longevity and resistance to disease, selection of sex, strong teeth, and a myriad of other things that, as far as we know, appear to be genetically predisposed one way or another. These strike me as eminently sensible choices to offer, and to make. You should view the first few minutes of the movie “Idiocracy”; there’s an amazing nugget of truth in that prescient work of fiction that far outweighs its entertainment value.

    Why remove the permission at birth? Certainly it’s just as ‘unfair’ if a one-year-old has a massively crippling brain injury.

    The issue at hand is the health of, and risks to, the mother as weighed against the health of, and risks to, a blastula or fetus, along with the relative change in weights for those factors when the fetus is a consequence of a despicable act of coercion. As I described just above, when the health of the mother is no longer affected by the fetus, and when it no longer poses a physical risk to her, then the liberties of the fetus itself must assert themselves. Obviously, if the fetus is or becomes permanently unable to think or reason, it no longer carries those characteristics that legitimately combine in sum as rights-bearing animal life. In such a case, issues of liberty for the fetus are moot. Once born, however, that physical separation from the mother moves the issue of the viability of the new person to its own discrete merits, whatever they may be.

    If you believe that a logically and physically distinct organism is ‘just a clump of cells’, go look in a mirror.

    A (relatively large and numerous) clump of differentiated cells is precisely what I see. That’s exactly what I expected to see, too. I am unsurprised and in no way impressed. There are billions of similar clumps on the planet. Most of the others are more esthetically appealing, frankly, though perhaps I’m just bored with that amalgamation in the mirror. I have seen it a lot, after all.

    So: What do you see? Or perhaps I should ask, what did you expect me to see?

  104. You are expicitly arguing

    It’s explicit, is it? Quote me. Ah, and as you search for this nonexistent line of argument, think of an answer to this: ‘abortion’ is divisible into ‘ejection’ and ‘murder’; why are you so keen about the second part that you are now bullshitting me about what you see the mirror?

  105. Once the fetus is no longer part of her body, that fetus is no longer a physical threat to the mother.

    So when the health risk to the mother is exceptionally low, you no longer would support the right for abortion? For example, in the third trimester of a normal pregnancy in the United States where the risk of death for _all_ pregnancies (including the risky ones) is barely one in ten thousand. I think it is a safe assumption that, were risky pregnancies terminated early, this number would be on the order of one to five in one hundred thousand.


  106. Ben | May 7, 2008, 1:01am | #

    The fact is, there is no “other” until the blastula or fetus is not parasitic upon your immune system, circulatory system, an integral part of your superstructure, a direct risk to your physical integrity, etc.

    I think you are highly confused over the word “fact”. Indeed, this is what we are debating, and has always been the core of the disagreement.

    There’s no gray area here.

    Uhh….

    Consequently, there’s no legitimate place for a government to enforce the idea of “other.”

    I think that people named “Ben” have no rights, and I don’t think there is a gray area. Can you give me your address so that I can come and kill you and loot your home tonight? Thanks!

    Or perhaps you would agree that leaving the decision concerning your rights shouldn’t be left up to individuals? Your argument is boiling down to “I am right and don’t need to argue my position”, which almost certainly means you are wrong.

  107. I didn’t actually read the article, but was struck by the question posed in the subtitle. Does the Constitution really protect unenumerated rights? Is that seriously a question among people who are supposed to have an interest in this stuff? Aside from the fact that purpose of the document is to restrain government and not individual, does anyone really think it is plausible that our rights exist only to the extent that the Constitution enumerates them? The right to cut your toe nails? The right to eat lamb chops? The right to toss the baseball with your son? Does anyone seriously make the argument that we get our right from the Constitution or that the only rights we are supposed to assume we have are those granted to us by this document?

    Also, anyone with any sense knows that the abortion issue is hardly about simply a person’s “right to choose” or not. I have always, in general, supported a woman’s right to decide if she will have a child or not, but that does not remove the onus on the woman to take some responsibility for her choices and her body. Under non-extraordinary circumstances (risk of the mother’s health or severely defective fetus would be examples of extraordinary circumstance) there is no reasonable argument for waiting until the sixth or seventh month to decide to abort a child and at a certain, any sane person would have to agree, a fetus does become a child and it doesn’t magically turn into one once it exits the mother. The argument that a clump of cells the size of pea is a “baby” is equally as dishonest and absurd. As long as the two sides hold each hold on to their absurd and extreme positions this debate will continue as pointlessly as it has for the last 40 years.

  108. When those who are yowling about the “rights of the fetus” consent that the little bugger be removed from the woman and implanted in THEIR stomachs instead, then I’ll believe they’re actually putting their money where their mouths are.

    Otherwise, STFU.

  109. @grumpy realist: Those howling about the rights of the mother must first agree to be aborted before their opinions will be considered.

  110. Easy, abolish the US.

    It was not properly ratified anyway.

  111. It will not pass anyway. No worry.

  112. Ah, “majoritarian” also known as democracy. Now, I think democracy is a good and noble thing. Rather than some monarchy, plutocracy or oligarchy where elitists dictate everything, arbitrarily deciding what is “best” for us {these come in liberal & conservative varieties}, instead it is through the collective community that our laws are decided; our society shaped. One would hope, for the most part, the welfare of all is considered even if through sheer tug-of-war alone.

    Electing representatives through a democratic process seems rather attractive too, to me anyway. Still, the point made was apt, “There’s nothing inherently noble about a majority of people agreeing on a particular issue. Indeed, bad ideas often prove more popular than good ones.”

    As was pointed out in the article, there is such a thing as a tyranny of the majority – it’s a fact of government. I think this is what constitutions and inalienable rights are designed to protect the populace against. As such, simply because a majority decides what is best for all, including the minority, doesn’t mean that it is just or reasonable or even beneficial, for that matter.

    Majorities have supported such things as slavery, segregation, prohibition, gender and sexual orientation discrimination, but these things have not been beneficial to society and definitely not respectful of the basic rights of the individual.

  113. @Ben

    “You are explicitly arguing for the right to coerce a woman to bear a child that has been forced upon her (and in the case of incest, carries significantly increased odds of being defective in some severe fashion.) That’s a non-starter based on liberty. Quite aside from the health issues. It has nothing to do with “mommy doesn’t like you”, it has to do with personal liberty, and here, there was no liberty even as to conception, much less with regard to carrying the blastula or fetus to term – we’re talking about one of the very most repulsive forms of coercion here. If the mother doesn’t care to carry the product of such a despicable act to term, not to mention having to deal with if it was born, then she should certainly be able to make that choice.”

    If that’s “coercion” than all homicide laws on the books are coercive.

    There are always choices, and we should, of course, promote the maximum amount of human liberty and to that end get the government to butt out.

    The abolition of abortion is the promotion of human liberty, just like the abolition of slavery was the promotion of human liberty.

    Your outrage is analogous to stating “how dare we tread on the property rights of plantation owners? How dare we tell them they cannot own subhuman Africans?” We dare because a grievous violation against natural rights, our fundamental human liberties is being permitted on our own soil, and as non-anarchists, we want a government to exist and punish aggression.

  114. excellent points, jaydubya. as a south dakotan in the middle of the abortion fight, i wholeheartedly concur.

    abortion is, indeed, not mentioned in the constitution. but the right to life is. it is also mentioned in the declaration of independence. it is a right held by human beings simply because their Creator endowed them with it. it is our right, whether positive law recognizes it or not. and all governments federal, state, and local are dutybound to secure it.

    if people here believe that certain members of the human species do not retain a natural right to life, then they are sadly mistaken.

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