Interesting thought of the day


10 comments posted
Not quite ...

The mere absence of abortion regulation at the founding would not necessarily mean that abortion enjoys constitutional protection. Rather, it may simply mean that there were no laws upon the subject at the time.


pennywit's picture
Posted by pennywit on 23 November 2005 - 5:35am
Yes and No

Obviously, if the Founders had intended to set up an inflexible governmental system, there would be no amendment or legislative process and the Constitution would be a relic, like Latin - interesting, but no longer of daily use.

There are "code words" that get used, and "strict construction" means going back to the Founders - white, male, slave owners, with enough property to vote and hold office.

Those excluded during "strict Construction" days included slaves and women, and people who were impoverished through instiutionalized oppression. The attitudes of the "strict constructionist" of that time toward social programs, were primitive - when good people were men of property and the not so good, those who toiled on the land owned by these men.

You are probably not old enough to remember the 1964 Civil Rights Act debate. Our strict constructionists were against it. They argued (seriously!) that it violated white civil rights to serve a black person at a lunch counter because the Constitution protect citizens against "involunatary servitude."

"Strict construction" is code for "the rich, white, male, constitution." It means the constitution as the Confederacy liked it - without all those annoying amendments passed after Reconstruction, the Progressive Movement, and the New Deal. It is against seeing any language in the document that promotes the "General Welfare" nor is there anything about "The Right of Privacy."

Strict construction means undoing a 100+ years of legal evolution - another thing many strict constructionists are against - evolution.

What the right does not understand is that freedoms evolve and although a regeime can roll those rights back, harking to an early ages is not an argument. Take the UK as an example. At one time the soverign could have someone thrown in The Tower and tortured. Strict construction might assert that this is a princely right, but modern society has progressed beyond it.

Strict construction is hardly noble. The Founders where white, male, rich, and often slave owners and the Civil War was fought to deal with the issues they seemed unable to handle. To try and recast the Consitution into a document with an Ante-Bellum flair is laughable.

Too bad it looks like the Nine Old Men have no sense of humor.


Good to see you, Pennywit!

Matsu's picture
Posted by Matsu on 23 November 2005 - 7:09am

Hi, Matsu.

The Constitution and the Fourteenth Amendment are, of course, silent on the actual question of abortion, as one does not expect the Constitution, a general document by nature, to be so specific in its wording.

But the specific argument that a strict constructionist must uphold abortion as constitutional because abortion was legal in the early 19th century is incorrect. If you look at Roe v. Wade, you'll find that the early attitude on abortion was based not in the Constitution, but in common law -- and common law can be legitimately changed by statute.


pennywit's picture
Posted by pennywit on 23 November 2005 - 7:29am
My understanding that this historical fact was indeed discussed in the Roe case.

Also, my understanding is that the constitution does not enumerate our rights, but enumerates the rights of government. Just because the 14th Amendment doesn't mention it specifically doesn't mean the right doesn't exist.

media girl's picture
Posted by media girl on 23 November 2005 - 8:45am

Roe does indeed discuss common-law precedents, and in some detail. However, the argument that the Fourteenth Amendment, magnified by Griswold's privacy expectations, encompasses a right to an abortion is a stronger argument that the strict constructionist/historical argument.


pennywit's picture
Posted by pennywit on 23 November 2005 - 9:21am
I agree

Strict constructionist dogma doesn't really make much sense to me. Perhaps we should exhume the founders, extract DNA, grow clones and then ask hem what they meant.

I mean, they must have been pretty stupid to use such vague language when they knew they were mortal and would not live forever. How are our poor judges supposed to know what to do if we can't read their minds? Maybe we can have a Clone Court instead.

But it does seem to me that if there were no restrictions on abortion during the founding, then there's no strict constructionist rationale to say it's not recognized now. Who's to say that, back then, women who could not vote could at least control their own bodies?

Supporting bans and restrictions on abortion seems like judicial activism to me.

media girl's picture
Posted by media girl on 23 November 2005 - 9:38am

Hello, Pennywit!

My point was not so much about abortion, as it was about "strict construction" where basic rights that have been won are lost.

What people thought 200 or 2000 years ago is not necessarily more enlightened. They'd have you believe it was.

Matsu's picture
Posted by Matsu on 23 November 2005 - 8:50am
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maximus7's picture
Posted by maximus7 (not verified) on 23 November 2005 - 8:59am
I'd be happy to see some links ... sources that say anti-abortion laws passed in the second half of the 19th Century - as a consequence, ironically, of feminist agitation - weren't enforced until the 1940s. Marvin Olasky's Abortion Rites: A Social History of Abortion in America certainly does not agree with that assessment.

Meteor Blades's picture
Posted by Meteor Blades (not verified) on 23 November 2005 - 12:55pm
There are some links the Daily Kos thread, but I'm not sure to where. The Princeton professor who brought forth this argument on Air America is linked there, too.

media girl's picture
Posted by media girl on 23 November 2005 - 1:03pm