Aborted Liberty

On this day 37 years ago the Supreme Court of the United States delivered its decision in Roe v. Wade in what was one of the greatest affronts to liberty in our nation's history.

It was a violation of states' rights, a violation of the 5th and 14th Amendments, and a violation of human liberty. For, without life there can be no liberty. Below is a decision I delivered as if a member of the Court when I was a Constitutional Law student. In it I seek to prove the constitutionality of a state abortion ban and the unconstitutionality of abortion itself.

08-002 South Dakota v. Planned Parenthood of South Dakota
Justice LUNA delivers the opinion of the Court

The Court today is faced once again with “the sensitive and emotional nature of the abortion controversy”[Roe v. Wade, 410 U.S. 113, 93 S.CT. 703 (1973)]; therefore because of these emotions, we must consider the issue of abortion in light of the Constitution’s text. If we as a Court do not limit ourselves to the interpretation of the text, we open the Constitution to swaying trends of society. However tempting it may be to account for evolving social norms, our task is to uphold the Constitution, not our own public opinion. It is not the Court’s job to decide whether banning abortion is morally or socially acceptable; it is the Court’s job to decide whether or not the statute in question violates the Constitution. More specifically, the Court must consider whether or not the Constitution prohibits a state’s banning abortion save in the case of protecting the life of the mother. In Roe, this Court ruled that a pregnant woman’s “right of privacy” through the 14th Amendment Due Process Clause’s guarantee of liberty allowed for the termination of pregnancy through abortion. However, it is this Court’s opinion that Roe was wrongly decided. Though we members of the Court always seek to rule rightly in constitutional matters, we are not infallible, and errors in interpretation are at times made. It is this Court’s duty, then, at the risk of eroding stare decisis, to hold fast to the Constitution even above precedent. The Court will first reconsider Roe, then turn to the constitutionality of the South Dakota statute before us.

The ruling in Roe is based upon what the Court holds as a 14th Amendment “right of privacy,” and this Court agrees that such a “right of privacy” does exist. This Court in Griswold v. Connecticut, 381 U.S. 479, 85 S. CT. 1678 (1965), held that a right of privacy emanates from a “penumbra” surrounding the First, Third, Fourth, Fifth, and Ninth Amendments. However, the Court realizes that these guarantees arising from the Amendments are specific in nature and serve not to diminish other rights guaranteed within the same document. We now consider the nature of the “right of privacy” as held in Roe.

The Court in Roe struck down states’ ability to prohibit abortions, holding that up to a certain point in term a woman’s “right of privacy” encapsulates the right to terminate her pregnancy while outweighing a state’s interest in preventing abortion. However, the Court drew this ruling from an overly broad interpretation of the “liberty” guarantee of the Due Process Clause. The “right of privacy” is not and cannot be guaranteed at all cost. No reasonable person would hold that something such as murder would be protected if done within the privacy of one’s own home. There are limits on what can be done by one even within the realm of privacy. Roe had no basis in the actual text of the Constitution itself. The ruling overlooked the textual guarantee of “life” which precedes “liberty” in the 14th Amendment. Moreover, it did so in preference for a “constitutional right” found nowhere within the text of the Constitution. If a ruling of the Court will have the effect of infringing upon a right guaranteed by the Constitution, the ruling cannot stand. In the case of Roe, the Court made such a ruling. This non-textual exercise of judicial activism cannot be perpetuated by this Court.

First, we must establish whether or not the fetus to be aborted is in fact in a “state of life” to be protected by the Constitution. Justice Breyer acknowledges in Stenberg v. Carhart, 530 U.S. 914, 120 S. CT. 2597 (2000), “Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing death to an innocent child.” Furthermore, Justice Kennedy has acknowledged that a fetus has life by noting “the legitimacy of the State’s interest in fetal life” in Ferguson v. Charleston, 532 U.S. 67, 121 S.CT. 1291 (2001). However, fetal life can neither be proven nor disproven by mere words. That is why the Court in Roe spoke of the point of viability. As the fetus reached viability, the mother’s “right to privacy” would decrease and the fetus’s right to life would increase. Though the Court does not embrace such a weak framework in which constitutional rights fluctuate over time, it is important to note that turning one’s eye to viability strengthens the argument for fetal life. With medical advancements, the time of viability has moved closer and closer to the time of conception. Furthermore, science has now conceived children outside of the womb through the practice of in vitro fertilization. With the possibility of survival for premature babies increasing and that human life begins at conception for “test tube babies,” the Court must realize viability at conception may in the future be a possibility. The Court then recognizes that human life has come into being at the point of conception whether or not the point of viability is met. Neglecting to protect this life is tantamount to not protecting the most basic of rights guaranteed by the Constitution. Therefore, we opine that life does begin and is protected by the Constitution at conception.

Specifically stated constitutional rights must always be held in the highest regard. If a right is stated within the text, it obviously holds great importance to those who drafted and adopted it. Moreover, those rights specifically listed must hold a “preferred position” in our jurisprudence [US v. Carolene Products Co., 304 US 144 (1938)] . These guarantees must be protected by all means with the highest level of scrutiny applied to measures alleged to infringe upon them. This approach was absent in Roe and in the name of constitutional preservation must now be applied.

In Roe the Court was correct in stating that a woman has a right to privacy; that issue was settled in Griswold. However, the Court erred in its over inclusiveness with regard to reproductive decisions within that right of privacy. By permitting the taking of a fetus’s life through a “right of privacy” found nowhere in the text of the Constitution, the Court completely disregarded and negated the “right of life” specifically guaranteed in the text of the 14th Amendment. Life is the supreme fundamental right, which must never be taken without due process of law. Without “life” there can be no “liberty,” no “freedom of speech,” or no other rights for the people of the United States. A nation that does not protect life cannot protect liberty. As this Court realizes that the “right of life” is fundamental and must be preserved above all else, we thus overturn Roe v. Wade.

The issue before the Court in considering the South Dakota statute to take life must be subject to strict scrutiny, in which the burden is on the state to prove that the statute is based on a compelling interest and is narrowly tailored. As in all matters of the Court, we must turn to the foundation of our jurisprudence–the Constitution. The 14th Amendment addresses the issue clearly stating, “...nor shall any State deprive any person of life, liberty, or property, without due process of law.” It is the opinion of this Court that the explicit guarantee of “life” in the 14th Amendment is reason enough to uphold any practice that seeks to protect it. However, the Court will seek to exhaust the concerns of critics of the South Dakota statutes in order to test the constitutionality of their concerns and the Court’s ruling.

There are those who doubt that the unborn children were to be protected according to the wishes of the Framers. The answer to their concerns is found within the Constitution’s Preamble. There, the Framers state that it was their desire to “secure the Blessings of Liberty to [themselves] and [their] Posterity.” The Constitution was not meant to merely protect the living but all future generations.

The most important response to critics of the South Dakotan statute is that they lack firm constitutional evidence to support a right to abortion. In no place within the text of the document is there any explicit or implicit protection of such a right; rather, the opposite is found–a protection of life. The only support for abortion that critics can provide is based on the guarantee of liberty extending a “right to privacy” to a woman to terminate the life within her womb. However, this approach is problematic in many ways. It infringes on a specifically guaranteed right of life found directly before liberty in the Due Process Clause, and the Constitution does not explicitly mention any right to an abortion. Therefore, we believe that the claims of Planned Parenthood of South Dakota have no firm constitutional support.

Instead, we as members of this Court can find nothing within the South Dakota statute that would violate the Constitution of our United States. On the contrary, this legislation seeks to galvanize and provide support for the constitutional guarantee of life. Rather than undermining rights given by our honored document, this statute provides additional support to life, assuring its protection and the Constitution’s guarantee. We not only find this law to be within the protection of the Constitution, but we also find it to offer protection to the Constitution itself. The state met the strict scrutiny and has showed compelling interest in enacting this narrowly tailored statute. For these and the aforementioned reasons, we uphold the South Dakotan statute banning abortion save to protect the mother’s life and reverse the ruling of the 8th Circuit Court of Appeals.

The Judge's Constitutional Overview

Judge Andrew Napolitano has done a great service in providing a fine Constitutional overview via the follow from FOX. Embedded is the first of 5 parts. Click on the embedded video to watch the other parts on Youtube.

New Site from the TCPR

The free-market non-profit Tennessee Center for Policy Research has launch a new website that is a great tool in the pursuit of government transparency. I encourage you to use it in your own pursuits and keep an eye on where our money goes. Having already tested it out, I can firmly give my approval. Below is the press release.

NASHVILLE – With Tennessee facing a potentially devastating budget shortfall, Tennessee citizens and elected officials need to thoroughly analyze how every tax dollar is spent.

Tennesseans will now get a new, clear look into how the state spends their money down to the agency, person, and penny, thanks to a new transparency website launched today by the Tennessee Center for Policy Research.

The website – OpenTennessee.org – offers searchable databases of the following information:

• The entire payroll of more than 40,000 executive branch officials
• The entire payroll of nearly 1,000 legislative branch employees
• The entire payroll of thousands of judicial branch employees
• The entire listing of all retirees receiving a pension from a state or local government
• Nearly $50 billion in payments made to individuals and businesses since 2007

The payroll information is searchable in a variety of ways, including first name, last name, title, branch of government, department, wages, overtime, and total compensation. The expenditures are searchable by year, branch of government, department, vendor, category, city, and state. All data found on the website can also be downloaded for future use.

While Governor Phil Bredesen took significant steps forward by creating a transparency website in early 2009, the state-run website is incomplete and lacks user-friendly features such as various search options. OpenTennessee.org is the first transparency website to be independently sponsored and maintained by a private, nonpartisan organization.

“OpenTennessee.org is the only comprehensive, searchable, and truly user-friendly transparency site in Tennessee,” said Clint Brewer, executive director of the Tennessee Center for Policy Research. “We hope this website will become the go-to source for Tennessee taxpayers, citizen journalists and the mainstream media, providing a clear look into how state tax dollars are spent…down to the agency, person, and penny.”

Here are some examples of information never before provided in a searchable, accessible format in Tennessee:

In 2008, 1,100 state employees received more than $19 million in overtime pay (search: Payroll, 2008, Overtime more than $10,000).

In 2008, 794 government employees earned more than $100,000 a year (search: Payroll, 2008, Wages more than $100,000).

In 2008, 402 state and local retirees received more than $5,000 a month in pension payments (search: Pensions, 2008, Rate more than $5,000).

In 2007, the state spent more than $3.5 billion on “confidential payments” that it refuses to disclose to the public (search: Expenditures, 2007, Vendor “confidential payments”).

Between 2007 and 2009, the state shelled out $18.2 million in interest on its debt (search: Expenditures, All Years, Category “interest on debt”).

In 2008, state agencies spent nearly $49 million on travel reimbursements (search: Expenditures, 2008, Category “travel”).

In 2007, state government racked up more than $30 million in communications and shipping costs, more than half of which went to cell phone bills through AT&T (search: Expenditures, 2007, Category “communications and shipping costs”).

“These examples represent the tip of the iceberg,” noted Brewer. “As more Tennesseans, lawmakers, and media utilize OpenTennessee.org to scrutinize government spending, there’s no telling what might be revealed.”

Haitian Relief: Who's Responsibility?

So what do we make of the situation in Haiti from a constitutionalist/libertarian/conservative point-of-view?--a question we must face in light of the suffering caused by the recent earthquake in the region.

The simple answer is this: much should be done, however, not by way of the federal government.

Tragedies like the Haitian earthquake demand a reaction from us all. Hopefully, that reaction is one of concern for our fellow man. But the question arises: Should the response be based on charity or aggression? By this I merely mean: Will true altruism in the form of voluntary giving be the response or will taxes--taken at the barrel of a gun--be forced from some who do not desire to help.

The simple fact is that the Constitution does not allow for foreign aid, even in times of emergency. This does not mean that states under the power of the Tenth Amendment cannot offer foreign aid or that individuals cannot come to side of those suffering. In fact, if you have not already contributed and you are able, I would strongly encourage you to help the Haitian people in any way you can--monetarily or physically.

It is true that foreign aid in itself is flawed and hurts developing nations. But what is to be made of emergency aid?

I contend that allowing the expansion state influence into the affairs of other nations is a potential hazardous concern for ourselves and those we intend to help. Aid should come via a concerned people not an expansive state.

Moreover, even though our military may look good on a humanitarian mission in Haiti, I am not sure that we should support such a measure as it undermines the mission of the military to provide for the common defense of the United States. And I am not the only one who sees it this way. A better image--and one that does not violate our Constitution--is the image of citizens voluntarily coming to the aid of the Haitian people.

Some have said that sure we could help out as a government, even Ron Paul. And while I agree this is not the worst thing that could be done, I believe that it would be far better for the private sector to act alone in the humanitarian efforts. It is quite doable and I am sure that the private sector will be most responsible at the days end. Lastly, I am not even against governmental action--as long as it is not federal in nature.

My point is simply this: no matter what the situation that arises let's not look to the federal government as our savior. Moreover, let us in the private sector step up, be consistent in our views, and provide help if we are able and willing.

My thoughts and prayers truly are with the Haitian people. May Christ be magnified in this tragedy, and may all suffering be alleviated.

PS: I would also recommend you read the following post by the Humble Libertarian on How to Help Haiti for the Long Term. It provides what we can look to long term after we take care of the needs of the moment.

A Reflection for MLK Day

Today is Martin Luther King Jr. day in the United States--a day in which we can reflect on a man who forever changed the political and social landscape of our country.

I am in no way a full-fledged supporter of Dr. King. Some of his convictions I do not share, and some of his alignments I can not endorse. (I can understand these positions and alignments, however, and do not blame him for them.)

That being said, MLK leaves much to be admired (and I do admire him much). He was an elegant and powerful speaker. He was man of conviction and principle. And he worked dilegantly for the cause of freedom. He will forever be an American hero and one or our greatest leaders.

Dr. King showed what could be accomplished through peaceful resistance and respect for one's fellow man. He understood that the state is not always right, laws are often unjust, and a battle for rights is a fight worth having.

While I do not ask you to blanket endorse all that is Dr. Martin Luther King, I do ask you to consider what good can be drawn from his example and apply it to our current struggles.

"Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed."-MLK Jr.

Is BET Obama Approval Only Skin Deep?

What alarms me about this video is not really the overwhelming support of Obama by those who attended the BET (Black Entertainment Television) Awards. Rather, the total lack of substance to the support is quite telling. Why has he done so well? Can you point to a single policy issue that distinguishes him as a good leader?

Moreover, many of those interviewed allude to the failure of Bush. I don't blame them. I am no fan of Bush. In fact, my dislike for Obama stems from the fact that his actions are a continuation of Bush era policies. The Obama administration merely took the faults of the Bush administration and put them into overdrive.

For these celebrities to claim the success of Obama while holding to the failure of Bush, they are being grossly unfair and inconsistent. This could be a result of racial prejudice, but I hope that is not true as such a claim would assume that Obama is given a free pass for the same policies for which Bush is held rightly accountable merely because of each man's skin color.

This is not only true of BET celebs, however, as even many white Americans hold this same inconsistent view. That does not mean that whites could not be giving Obama a free pass based on racial considerations as well, but let's assume neither party is responsible for such a dastardly position.

What's clear is this: Both men have been failures, and we need to be consistent in our criticism of both. If we do not, we let racial prejudices guide us rather that reason. Let's call a spade a spade, and let's make sure that our opinions are based on substance rather than criteria that goes no more than skin deep.

Ron Paul on a Whole Slew of Issues

From Hatti to the FED...