Our Brothers' Keepers

Once, during a discussion about abortion, I made the argument that if we allow the government to tell citizens that they can not abort a pregnancy, philosophically it was similar to allowing the government the power to tell citizens that they must abort a pregnancy. Needless to say, that discussion did not resolve the issue; we'll probably eradicate world hunger or achieve world peace first.

In reexamining this argument, I wondered how easy it would be to reword a given prohibition to reverse the wording while keeping the dictate intact. For instance if we passed a law stating "No citizen shall be allowed to abort a pregnancy"; assume for the sake of argument that we've already agreed on the definition of the term abortion. The exact procedures are moot because we want to focus on the wording of the prohibition and not on the technicalities of the definitions or shades of grey. Picking abortion is done solely to start with an issue that is easily construed in terms of black and white.

If the law says, "You shall not abort" it could just as easily have been written as "You shall carry to term regardless". So even though the wording only states an action which can not be taken, it implicitly mandates the opposite action.

China already condones abortion through euphemistically named "One Child" policy. While China does not officially force abortions, there continue to be reports nonetheless. "You shall have up to one child" turns into "You shall not have more than one child".

Using another example, capital punishment, we could conceive of a law which says, "Thou Shall Not Kill" it implicitly demands "Thou Shall Protect Life". A capital punishment law which allows the State to kill someone could state "Causing the death of a person (through means described as "In the first degree") is punishable by death" is effectively saying, "The State shall kill those who commit first degree murder." If we really believe in the principle of "Thou shall not kill" then capital punishment must by necessity claim an exception in the definition of what the term 'kill' means. Killing usually means ending a living persons life. Allowing the State the power to define exceptions makes the commandment not to kill into a morally relative value "Thou shall not kill... unless the State says it's ok" which could include self-defense, war, defense of others, or the state ordering the killing of a citizen which it feels is deserving of the ultimate punishment. One counter argument has been "they don't deserve to live" or "they lost their right to life when they took another's". If I don't deserve to live, then I deserve to die. If a State uses it's sovereign power to execute someone unjustly, upon whose soul does the responsibility for a wrongful death rest? Since a State does not have a soul in and of itself, then evil done by the State must then be shared by the people of that State, unless it can be determined to have a singular responsible ruler, a 'Unitary Executive' if you will. If the State can not be held responsible for it's own moral failings, then that leaves the people who actually carry out the misdeeds. The hooded executioner,for example, who either cares not about such metaphysical questions or uses their faith in the infallibility of their leaders judgement as a shield against the possibility of personal guilt.


"Thou shall not covet" (stealing is illegal) becomes "Thou shall be content with what you have and your opportunities to change what you have." (No short-cuts to wealth, only follow the culturally acceptable avenues." Of course I'm paraphrasing here but I'm wandering through examples, trying them on for size to see whether there is an example which disproves the idea.

Summary: You must do X is equivalent to You shall not do non-X, or You must not do X becomes You must do non-X.

In programming-speak, (X == true) is the same as (X != false) .

The Privileges and Immunities Clause

This is an interesting article on the Privileges and Immunities Clause of the Fourteenth Amendment and the incorporation of Second Amendment rights to State and local governments. It is a delicious irony that the best constitutional text to increase gun rights across the country also is the best constitutional argument for a right to abortion.

The Privileges and Immunities Clause does not apply to a right to abortion because abortion is not a "fundamental" right, as understood at the time of the adoption of the Fourteenth Amendment. That's not to say that a right to abortion could not grow into a fundamental right, but that could only happen over a large swath of time after consensus has been reached on the subject. Then, by definition, the courts would be fulfilling their role to enforce the right.

The meaning of "person"

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
--Fifth Amendment to the U.S. Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
--Section 1, Fourtheenth Amendment to the U.S. Constitution

I ran across this piece on Constitutional views of a person a couple of weeks ago. The article seems to unduly ramble in an attempt to address all possible arguments against abortion (e.g., social, religious, moral, and constitutional) and, in the process, does a very poor job of building a coherent narrative. Most of the points raised merely build strawmen to knock down or miss the point entirely, but the constitutional argument that the author makes for legal abortions is worthy of consideration. The kernel of the article argues that unborn babies cannot be considered "persons" in the constitutional sense of the word, since "person" had a specific meaning when the Fifth and Fourteenth Amendments were passed:

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decision-making, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

The author applies a strict textualist interpretation to the constitutional meaning of "person" and reaches the same conclusion about the constitutional meaning of "person" as Supreme Court Justice Antonin Scalia has reached. However, Justice Scalia goes on to say that neither does the Constitution prohibit protection of fetuses by the enactment of legislation:

The last sentence of section one of the Fourteenth Amendment does indeed say that no state shall “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.” The word “person” in these provisions could conceivably be meant to include fetuses. That the Fourteenth Amendment does not employ the word in that unusual sense is well enough established by the very next sentence—the first sentence of section two—which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” No one has ever thought that pregnant women must be counted (at least) twice. Philosophers, I suppose, can disregard this affirmation of ordinary meaning, but not judges who pay attention to text. Fetuses may well deserve the same protection against destruction as other human beings; and natural law may well give it to them; but the positive law adopted by the American people and entrusted to the enforcement of their courts does not—unless and until legislation to that effect is adopted. I believe, of course, that such legislation is entirely permissible, since the argument that the Constitution forbids protection has even less to be said for it than the argument that the Constitution confers it.
--Reference: http://www.firstthings.com/article.php3?id_article=81

Live by the textualist sword. Die by the textualist sword.