On Jun 20, 2005, at 7:28 PM, John D. Giorgis wrote:
An interesting tidbit was passed along to me today that bears
repeating in
light of our most recent list discussion on the subject....
Rehnquist, in his dissent from the Roe vs. Wade nooted that the Court
must
be wrong to find any basis for this right in the 14th Amendment to the
Constitution, for the simple reason, as he explains, that at least 36
laws
enacted by state or territorial legislatures were in force at the time
that the 14th Amendment was adopted in 1868.
If you feel Rehnquist is correct, how is the Supreme Court justified in
finding that states which have legalized "medical" marijuana usage are
in violation of the law?
Moreover, some 21 of these
laws were still in effect when Roe vs. Wade was decided. How, then,
could
they
be at odds with the 14th Amendment?
Hmm, did you read the rest of the text of the court's decision? It
seems that your question is answered there, answered quite eloquently
and at length.
In the words of Justice Rehnquist, "To
reach its result, the Court necessarily has had to find within the
scope of
the Fourteenth Amendment a right that was apparently completely
unknown to
the drafters of the Amendment."
So your point seems to be that the Constitution is a document that can
be interpreted in a variety of ways, some of which may not have been
the intentions of the framers.
That should hardly be surprising; the Constitution is flexible. After
all, protecting pornography as free speech was surely not in the minds
of the founders with Amendment I; protecting the right to own assault
weapons was surely not in the minds of the founders when they ratified
Amendment II. And I'm quite sure that the preamble of the Declaration
of Independence, when it states in part that "...all men are created
equal", didn't take slaves into account at the time, and might or might
not have slighted women deliberately. That passage has also been
reinterpreted with time and a broadening of perspective.
As the majority opinion points out, there's no evidence at all to
suppose that the drafters of Amendment XIV even had fetuses in mind
when they were writing about due process, so while your point is valid
to that extent, arguing from Rehnquist's perspective (as I suggested
above) is not. The fact is that federal law *always* trumps that of the
states. That isn't even an amendment; it's written right into the body
of the Constitution.
One of the specific points addressed in this decision was who or what
qualifies as a "person" and can therefore be allowed or denied due
process under Amendment XIV. The evidence seems to support the
conclusion that at the time the amendment was ratified, fetuses were
*not* considered "persons" at all, *regardless of how far in the
pregnancy the mother was*. Thus if we were to try, as you seem to be
suggesting, to return to the "original" idea of Amendment XIV, abortion
would be legal on demand right until the baby began to crown. That
can't be what you want, can it?
When states appear to subvert federal law (as was argued of Texas in
this decision), questions of constitutionality must be decided. The
courts are there to determine how to interpret our laws, and it's
foolish to assert that any law, as written, is meant to be interpreted
in one way only in perpetuity. There's a 200-year-long historical
precedent that utterly abnegates such a view.
--
Warren Ockrassa, Publisher/Editor, nightwares Books
http://books.nightwares.com/
Current work in progress "The Seven-Year Mirror"
http://www.nightwares.com/books/ockrassa/Flat_Out.pdf
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