Freedom of Speech Is in the Constitution; Abortion Isn’t
James B. Shearer (see here and here), has implied that I am a hypocrite for supporting a balancing test in the context of First Amendment claims by government employees, but not in the abortion context. For example, he has said:
Patterico, you were not a big fan of Sandra Day O’Connor or her jurisprudence saying for example “I consider Powell and O’Connor to have been weak Justices, overly fond of multi-part balancing tests and splitting the baby.” (in a post dated 11/10/2005). So you get a couple of new judges more to your liking and they predictably reject one of O’Connor’s beloved balancing tests in favor of a bright-line rule and you are “disappointed” and complain at great length. Just what did you expect? Is “judicial restraint” just code for anti-abortion?
Commenter Anwyn chuckled at this “throw-down” about balancing tests.
Mr. Shearer’s argument is that the text of the Constitution says nothing about government employees being punished for their speech. Indeed, the text of the First Amendment protects freedom of speech only when infringed upon by congressional laws, and says nothing about the executive or judicial branches (case law has filled in that gap).
For that reason, Mr. Shearer does not believe that the First Amendment would prohibit the President from ordering me to be audited because I got on a soapbox and denounced his immigration policies. I asked him: “For example, if James Shearer criticizes the president’s immigration policy in a letter to the editor, can the President have the IRS audit James Shearer?” Mr. Shearer responded that he did not see a constitutional problem. His stance is the absolutist position that if it’s not in the text of the First Amendment, it’s not there, period.
The conservative/libertarian First Amendment scholar Eugene Volokh has decried similar views as nonsense:
This also shows the error of faulting liberal judges for “making up the law” in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can’t just rely on the text. They can’t just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn’t even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.)
One can criticize judges for just making up constitutional guarantees that aren’t mentioned in the Constitution at all. But here the Constitution does say something — but something very general. If it’s to be enforced at all, judges have to give it specific meaning. And that’s been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it.
The difference between a real constitutional guarantee like free speech, on one hand, and a phony one like abortion, on the other, couldn’t be more clear. The Constitution says something about freedom of speech. It says nothing about abortion — or even a general right to privacy.
The history of the “right to abortion” is well documented. The justices decided what they wanted to do on policy grounds first, and constructed the rationale later. It is a “right” that doesn’t exist in the Constitution at all, and applying Professor Volokh’s logic, it is justified to criticize judges for making it up.
The abortion “right” is thus quite a different animal from freedom of speech, where judges have to make up rules to give meaning to very general (but most assuredly existent) constitutional rights. It is a bogus argument to compare the two.
Sometimes judges have to create rules to enforce constitutional provisions. Sometimes those rules involve balancing competing interests. I prefer to avoid such tests when not necessary, but in the context of speech by government employees, I think it’s necessary. That doesn’t mean that I have to concede that the Supreme Court’s abortion decisions are legitimate — and it doesn’t make me a hypocrite.
Patterico, so if there is no right to privacy could the President put your tax returns on the web?
James B. Shearer (fc887e) — 6/5/2006 @ 7:19 pmPatterico, question: Would you still disagree with this decision if Ceballos had been an employee of Microsoft, and not of a government?
And for my own clarification, exactly what government is he an employee of? LA County?
Anwyn (01a5cc) — 6/5/2006 @ 7:25 pmThe right to privacy is the better analogy. As with the First Amendment right to free speech (but not to government employment), the Fourth Amendment does indeed something about privacy, just not what proponents want it to say.
Xrlq (51d90f) — 6/5/2006 @ 7:25 pmThe president would be violating a statute if he did so. Perhaps the better question is whether Congress could authorize him to do so. Probably. But Congress has power to do a lot of awful things, like authorize the President to nuke Toronto.
Andrew (08ba2c) — 6/5/2006 @ 7:28 pmComment #4 refers to comment #1.
Andrew (08ba2c) — 6/5/2006 @ 7:29 pmPatterico, question: Would you still disagree with this decision if Ceballos had been an employee of Microsoft, and not of a government?
This decision would have been made on different grounds: that Bill Gates is not a government official. But yes, there would be no First Amendment protection.
And for my own clarification, exactly what government is he an employee of? LA County?
Yes. L.A. County.
Patterico (50c3cd) — 6/5/2006 @ 7:55 pmThanks. I think I’ve been operating under something of a misunderstanding. Not a gross one, but I do see a little bit more why you disagree with the decision. I guess, then, I have to ask, had it gone the other way, how is that not special protection for govt. employees vs. the rest of us?
Anwyn (01a5cc) — 6/5/2006 @ 8:00 pmAlso regarding comment #1, the issue should boil down to whether putting tax returns on the web is “necessary and proper.” In other words, none of the express powers of Congress would authorize Congress to do such a thing, so Congress would have to rely on the Necessary and Proper Clause. It’s possible that Congress could make an adequate showing that publicizing everyones’ tax returns is a legitimate way of ensuring compliance with the tax laws. Congress has recently been considering legislation to publicize everyones’ campaign contributions, and that would probably pass consitutional muster too.
Andrew (08ba2c) — 6/5/2006 @ 8:07 pmSo are you saying that the only REAL rights we have are the ones specifically enumerated in the Constitution?
You seem to think that because no “right to privacy” is mentioned in the Constitution, that such a right does not exist.
Doesn’t the Ninth Amendment cover this?
It seems to me that a general overview of the Constitution could be summed up best as “You sure as hell DO have a right to privacy.”
The Third and Fourth Amendments specifically assume a “right to privacy” that probably seemed so self evident to our Forefathers that it made about as much sense to write it down “the sky is blue”.
As an aside, even as a Libertarian and an Atheist, I am against abortion. A fetus is Human, and its alive. Killing it is taking a human life by any definition. But I’m also uncomfortable using the violence inherent in any government to force a woman to bear a baby to term. Shades of “A Handmaiden’s Tale”.
Its a gray area morally and philosophically, but mischaracterizing the Supreme Court’s decision as a “right to abortion” is not clarifying the different sides in the dabate. It only serves to muddy the waters further.
Dark Lord Xenu (af8a25) — 6/5/2006 @ 8:27 pmIts a gray area morally and philosophically, but mischaracterizing the Supreme Court’s decision as a “right to abortion” is not clarifying the different sides in the dabate. It only serves to muddy the waters further.
You think it mischaracterizes the Supreme Court’s jurisprudence to suggest that the Court has found a constitutional right to an abortion???
I say your comment, not my post, is the mischaracterization.
Patterico (50c3cd) — 6/5/2006 @ 8:47 pmDark Lord, if you’re referring to me, I think the Constitution does protect certain aspects of privacy, e.g. in the Fourth Amendment. Furthermore, the Constitution protects privacy by only giving Congress limited and enumerated express powers, which narrows down the ways that Congress can violate privacy. Also, the Constitution protects privacy by requiring that when Congress acts pursuant to implied power, rather than express power, then its actions must be “necessary and proper.” There are lots of other ways that the Constitution protects privacy. For example, the Constitution requires that any impingement upon privacy must be approved by two houses of Congress that are accountable to the people, and then the impingement must be approved by the president.
You seem to think that the courts alone can strike down any statute that they deem violative of anyone’s privacy, and on that score I’d disagree with you. The Ninth Amendment doesn’t allow any such thing. The Wikipedia page on the Ninth Amendment is especially interesting, if you have time to visit it.
Probably no more than 1% of constitutional scholars nowadays believe that the Constitution prohibited any state governments from violating privacy prior to adoption of the 14th Amendment. And probably no more than 1% of constitutional scholars nowadays believe that the Constitution currently prohibits any private actors from biolating privacy. So, you’re correct that “You sure as hell DO have a right to privacy,” but you don’t have a complete and total constitutional right to privacy. Fortunately, statutes can be enacted to protect aspects of privacy that the Constitution does not already protect.
Andrew (08ba2c) — 6/5/2006 @ 8:58 pmI guess, then, I have to ask, had it gone the other way, how is that not special protection for govt. employees vs. the rest of us?
Anwyn,
It depends on how you look at it.
You could look at it as an issue of whether one has a right to criticize one’s employer without being fired. You, as an employee of a private company, don’t have such a right. As a public employer, I have a limited such right (subject to the notorious balancing test you love so much).
Or you could look at it as an issue of whether one has a right to criticize the government. That’s how I look at it, because that’s what the First Amendment is about: not criticizing your employer, but criticizing the government.
And looking at that issue, you have *broader* rights than I do.
You, as a regular citizen, can pretty much spout off to your heart’s content. For instance, if you hate my boss’s policies, you can yammer on about them as much as you like, and he can’t say boo.
By contrast, I am much more restricted. If I criticize my boss’s policies, I might get disciplined. Steve Cooley has a hammer over me that he doesn’t have over you. If he tries to haul you into criminal court you have all sorts of constitutional protections. But he can easily discipline me — or just not promote me.
And any litigation I bring as a result would be subject to a balancing test that I might well lose. If I criticize his policies, he has an argument that my criticism will cause disruption in the office, and hinder my ability to carry out his policies.
And that’s if I *get* the balancing test that you all want to deny me.
Not that I would ever criticize his policies. I love his policies! (And if I didn’t, do you think I’d say so?) But you see what I mean, hypothetically speaking.
Patterico (50c3cd) — 6/5/2006 @ 9:07 pmSuddenly I see much more clearly where you’re coming from on this. Silly of me not to have realized your opinion on this matter was restricted to government employees. And if Steve Cooley ever *does* try to haul me into criminal court, you have to recuse yourself, right? 🙂
Anwyn (01a5cc) — 6/5/2006 @ 9:19 pmPatterico, here is another hypothetical for you. Suppose I am working for a private employer and I write a letter to the editor criticizing Bush’s immigration policies and Bush tells my employer to fire that troublemaker Shearer and my employer does so, have my constitutional rights been violated?
James B. Shearer (fc887e) — 6/5/2006 @ 9:21 pm… recuse, or whatever the proper term is for a lawyer withdrawing from a case. Recuse is the judge, yes?
Anwyn (01a5cc) — 6/5/2006 @ 9:23 pmJames B. Shearer, even I can answer that one: hell yes they have. I guess that throws out my “Congress shall make no law” argument.
Anwyn (01a5cc) — 6/5/2006 @ 9:23 pmPatterico, here is another hypothetical for you. Suppose I am working for a private employer and I write a letter to the editor criticizing Bush’s immigration policies and Bush tells my employer to fire that troublemaker Shearer and my employer does so, have my constitutional rights been violated?
Yes.
Patterico (50c3cd) — 6/5/2006 @ 9:32 pmAnd doesn’t that example erase some of the supposedly unfair distinction between protections for private and public employees?
Patterico (50c3cd) — 6/5/2006 @ 9:34 pmSo your position is that this case erases the middleman, i.e. in the Shearer hypothetical, your employer took orders to fire you from the govt. and that in Ceballos, the employer *is* the govt.–they’re the same abuse of #1 rights. Hmmm. You might be winning me over.
Anwyn (01a5cc) — 6/5/2006 @ 9:51 pmI love it.
I’ll have another post about all this tomorrow morning.
Yeah, I know I said I was done with the issue. I lied. Sue me.
Patterico (50c3cd) — 6/5/2006 @ 9:58 pmNo, no, don’t let Patterico win you over. State agencies are the best judges of whether their employees are competent or incompetent. That determination should not be transferred to federal courts. If it is, then state agencies will be much less likely to fire people for incompetence, and state agencies will then perform their functions much less efficiently.
If a state employee is fired or demoted on a trumped-up charge of incompetence, then the employee can go public without fear of further repercussions. The First Amendment will protect him. Also, state legislatures can pass whistle-blower laws, and laws that ensure competence is fairly judged within state agencies. Let’s not pretend that the First Amendment was intended to let courts intervene when George Washington attempted to fire a cabinet officer for giving him crummy advice. It’s absurd.
Andrew (08ba2c) — 6/5/2006 @ 10:01 pmNow THAT is something I still need clarification on–thank you, Andrew–WHY was this kicked to a federal court to begin with? Why didn’t L.A. County or the State of California take care of it?
Anwyn (01a5cc) — 6/5/2006 @ 10:17 pmCeballos filed a grievance. Then he gave a speech to a local bar association, and two days later, his grievance was dismissed, on the basis that he hadn’t suffered retaliation — because the office often assigns 11-year lawyers to prosecute misdemeanors. (Bit of sarcasm there.)
As for the State of California, perhaps Andrew can point me to the whistle-blower law that Ceballos could have used. His lawyer said in the second oral argument that none of the lawyers or amici arguing against her had identified one. She herself said that there might be one that *might* apply, but the law was in flux.
The federal whistleblower statute has been interpreted as having the same exclusion as the First Amendment now has: no protection for speech that is part of the employee’s normal duties.
Whistleblower statutes are not the cure-all that they have been portrayed as being.
And neither is going straight to the press, as I have also argued.
Patterico (50c3cd) — 6/5/2006 @ 10:34 pmSo … when his internal grievance was dismissed, Ceballos filed suit in federal court?
Anwyn (01a5cc) — 6/5/2006 @ 10:46 pmIf the speech was given as a citizen on a matter of public concern (rather than pursuant to his official duties), then he has a valid First Amendment claim. But Patterico, you know that the Supreme Court case didn’t have anything to do with the speech, didn’t address the speech, and didn’t turn on the speech. It was all about the memo. Why are you bringing up the speech?
I feel sorry for Ceballos. Obviously, he’s a good guy who tried to do the right thing. Maybe he’s a friend of yours, I don’t know. But let’s stick to the facts of the case, which involved the internal memo rather than the speech.
P.S. I really do wish I had time to research California whistle-blower statutes. I never claimed that California has one, only that they COULD have one.
Andrew (08ba2c) — 6/5/2006 @ 10:46 pmSo … when his internal grievance was dismissed, Ceballos filed suit in federal court?
Anwyn,
Yes.
But Patterico, you know that the Supreme Court case didn’t have anything to do with the speech, didn’t address the speech, and didn’t turn on the speech. It was all about the memo. Why are you bringing up the speech?
Andrew,
Anwyn asked what happened. Based on what I read in the opinion, I answered her.
I feel sorry for Ceballos. Obviously, he’s a good guy who tried to do the right thing. Maybe he’s a friend of yours, I don’t know. But let’s stick to the facts of the case, which involved the internal memo rather than the speech.
I don’t know him well at all. And he’s not the only person in the situation I know. And I am not taking sides on the facts. I have said that many times.
Again, Anwyn asked a question. I just answered it. And I took my answer straight out of the opinion.
Patterico (50c3cd) — 6/5/2006 @ 10:50 pmOK, goodnight all. 🙂
Andrew (08ba2c) — 6/5/2006 @ 10:54 pmPatterico:
The balacing test being the reason you are only a little more equal than the rest of us, not a lot more equal than the rest of us, as you would be if anyone were serious about applying the First Amendment here.
The First Amendment is about free speech, period. Besides, 99% of what you say about The Government has little or nothing to do with your employer anyway. Suppose you and I both blogged substantively identical entries on the war in Iraq, offending both of our bosses equally. Why on earth should it be any easier (or harder) for Steve Cooley to fire you than it would be for [censored] to fire me? And for that matter, why do you suppose I referred to my boss as “[censored],” while you openly admit your boss’s name is Steve Cooley?
Indeed I can, unless I’d like to keep my job. Seeing as I do value my continued employment, there’s a good deal of information affecting public interest, either within my company or in its industry generally, that I don’t dare blog about. And seeing as the only hypothetical risk to you do for doing the same is loss of job, I don’t see how that makes government employees special. Only a line of tortured court decisions can do that.
And if you hate my boss’s policies, you can do the same. No matter how good a friend (or bad an enemy) your boss may be of mine, your boss can’t fire you for anything bad (or good) that you say about my boss, while my boss can fire me for praising or criticizing yours. And seeing as your boss is a public figure, the possibility that my boss will have a strong opinion on what I say about your boss is not particularly remote – while the chances that your boss will have any opinion of mine, is. So when it comes to criticizing the other guy’s employer, the strongest protections are afforded to those who need them the least.
And if I criticize my boss’s policies, I might get disciplined. The hammer Steve Cooley holds over you is no different from the hammer held by every other employer over his employees, except that a line of tortured court cases has restricted Cooley’s hammer significantly.
And if he tries to haul you into criminal court, you will have all the same protections. No difference there – except maybe a slight edge to you, given that as a practical matter, Cooley is less likely to prosecute a prosecutor than he is to prosecute some random citizen.
As can my boss, and everyone else’s. You’re arguing as though the mere fact that one person wears two hats makes your case special. It doesn’t. In a rational world, it would be no easier or harder for Steve Cooley, qua employer, to discipline or not promote you, qua employee, than it is for [censored], qua employer, to do the same to me. Similarly, it would be no easier or harder for Steve Cooley, qua prosecutor, to prosecute you, qua defendant, than it would be for a local D.A. to prosecute me. On the prosecution side, we live in a rational world. On the employee side, we don’t.
And any litigation I bring as a result will be tossed out of court summarily, at least as to any constitutional claims. So once again, you gummit workers remain more equal than the rest of us, just not as much more equal as you’d like.
No sympathy there. Either extend that balancing test to everybody, or get rid of it for everybody.
Xrlq (f52b4f) — 6/6/2006 @ 6:17 amXrlq:
I said there were two ways to look at this. You just gave a lengthy dissertation entirely from the first such perspective. Now let me give you the second.
Freedom of speech is indeed largely concerned with criticism of government. We should be as free to discuss Xrlq’s employer as mine, for sure — but (and I mean no offense when I say this) what my employer does is typically thought to be more of a matter of public concern. People discuss his actions more, and he is in the paper more. His actions implicate the values protected by the First Amendment more than your employer’s actions do.
I am not boasting (believe me) when I say that two cases I have personally handled have been covered in the L.A. Times. One of those was the subject of a nationwide story and I faced down about 7 T.V. cameras. The coverage in both cases was reasonably favorable, thank goodness. But I haven’t discussed the coverage of either on this blog and don’t intend to. I felt constrained in commenting about matters of significant public interest.
I also worked on habeas petitions coming out of the Rampart scandal — another matter of significant public interest.
My situation is not unusual. My wife has had far more cases in the paper than I have.
It goes with the job. And with that comes a constraint in what I can talk about. I accept that to a large extent. But I don’t think I give up my rights to speak about these public matters entirely. I just walk a tightrope whenever I do, so I am very careful about it — and usually choose not to walk the tightrope.
In this sense, I am in a *worse* position for First Amendment purposes than many private employees like yourself.
It depends on how you look at it, as I said. I just gave you the view from the other perspective.
Patterico (50c3cd) — 6/6/2006 @ 6:41 amAnwyn and Patterico say above that my constitutional rights would have been violated were I fired in the hypothetical I gave in comment 14. In is unclear the courts would agree, who would I sue and on what grounds? That is an hypothetical case, here is a real instance in which an employee of Raytheon, Lawrence J. Korb, was fired after irritating the Navy by opposing their proposed budget. Were Korb’s rights violated (the courts appear to have ruled that they were not)?
DeLay was notorious for suggesting lobbyists only employ Republicans, was this a violation of anyone’s constitutional rights?
James B. Shearer (fc887e) — 6/6/2006 @ 10:16 amI can say the sky is green, but that doesn’t make it so 🙂
It mischaracterizes the decision in the same way that the Conservatives are up in arms now about the Supreme Court “finding” a right for gay men to have sex. Its ridiculous. Its not a new right. If you can’t find in the Constitution where its expressly granted the government the duty to control something, then we’ve always had that right. There’s nothing in the Constitution granting the government the duty to oversee either abortion or sex.
Just because the government in the past decided to step outside of its Constitutional boundaries, does NOT mean that a brand new right is created because those boundaries on the government have been reinstated.
Dark Lord Xenu (770163) — 6/6/2006 @ 1:58 pmDark Lord Xenu,
You do understand that Roe v. Wade took the valuation of children away from the legislatures of the states and placed it in the hands of five Supreme Court justices, don’t you? Just what part of the Constitution says it could do that?
nk (bfc26a) — 6/6/2006 @ 2:08 pmThe 1st Amendment is not ambiguous, but all emcompassing. Short of “fire” in a theatre, grin and bear it.
KobeClan (8eddde) — 6/6/2006 @ 3:43 pmI’m tired of people using the law to stifle free speech. Sit down and shut up.
Dark Lord, the Constitution does not grant states any power at all. States derive their power not from the Constitution, but rather from their respective citizens.
Andrew (08ba2c) — 6/6/2006 @ 4:07 pmnk,
I’d say it took the “valuation of children” away from legislatures and gave it back to the individual. Always a good thing in my book.
Andrew,
I’ve reviewed my posts and see nothing I’ve said about the Constitution granting states powers.
Dark Lord Xenu (af8a25) — 6/6/2006 @ 4:41 pmDark Lor, at comment #31 you said:
The Constitution doesn’t grant state governments the duty to control things, but that doesn’t mean we’ve always had the right to do those things. The powers and duties of the state governments are not described in the Constitution. They are instead described by the people of each state.
Andrew (08ba2c) — 6/6/2006 @ 6:05 pmAt comment #35, DLX said:
“nk,
I’d say it took the “valuation of children” away from legislatures and gave it back to the individual. Always a good thing in my book.”
Do you mean an individual who thinks they are nuisances, punishments for sex and can be put to death? Or maybe they can be sold into slavery? Are the children themselves not individuals? Do they have a voice in their valuation? Your statement is so barbaric in so many aspects that it defies serious argument.
nk (8214ee) — 6/6/2006 @ 6:13 pmAndrew,
Thanks for the clarification. Are you saying that state governments DO have the right to define what kind of sex is legal between consenting adults? Or to force women to carry their babies to term?
nk,
Or the opposite side of the coin, how about a 13 year old girl, or a victim of rape? I really wish it was as black and white as you try to make it out, but out here in reality, its a much more difficult situation. Are you truly comfortable using the inherent violence of government to force women to carry their children to term? At gunpoint if necessary?
The Left can’t admit that anything short of aborting the baby when the head crowns is immoral, because they lose their argument in a slippery slope. “If you can’t abort at nine months, why not eight, seven, six, etc.?”
The Right can’t admit that perhaps a clump of a few cells clinging to the uterus is NOT yet a conscious human being, because they lose the argument to the slippery slope in the other direction. “If you can abort at 2 weeks, why not 2 months, 3 months, etc.”
Since laws, by definition are broad and encompassing, there’s no way they can answer these morally ambigious questions to everyone’s (or anyone’s for that matter) satisfaction.
And since I am not willing to personally incarcerate women who, for whatever reason, choose to have an abortion, I say leave it to the individual, and wage the battle on a moral front, not a legal one.
Dark Lord Xenu (af8a25) — 6/6/2006 @ 8:25 pmDLX, #38:
Only the extreme pro-abortionists claim that there will be no more abortions if Roe v. Wade is overturned. I see it as giving the question back to the collective wisdom (and folly) of the people through their elected representatives. Some states may very well continue to allow abortion on demand. Others may restrict it to cases of threat of death or great bodily harm to the mother. Most, I think, would permit it in cases of incest or rape (including child rape). I imagine that all would still allow the “morning after” pill or even the older methotraxate method.
nk (d5dd10) — 6/7/2006 @ 5:03 amDLX, what is the difference between a “moral” battle and a “legal” one? Surely, you’re not suggesting that states can’t use moral grounds to justify legislative acts, are you? Let’s be more specific about “legal,” shall we — I would suggest that we distinguish between “legislative” battles and “constitutional” battles, the latter being waged primarily for the purpose of removing all opportunity to wage the former, which of course really means permanently imposing one view of morality on society, even if that view happens to be the minority view.
And, I should point out that, from this angle, the 9th ink blot doesn’t appear to be as you describe it. Rather, it suggests only that the list of rights in the Constitution isn’t intended preclude the existence of other rights, begging the question: where do you find a right to abortion that trumps the other ink blot (the 10th ink blot) — which says, from this angle, at least, that the power to make laws based on shared morality, to the extent not delegated by the Constitution to the United States or prohibited to the States, is reserved to the States, or to the people.
If you want to use the 9th amendment as a source of “rights,” rather than just a rule of construction, then let’s dispense with Congressional hearings and let Supreme Court nominees take Rorschach tests instead.
TNugent (6128b4) — 6/7/2006 @ 3:31 pmPatterico,
Just wondering what your take on unenumerated rights is. You mention that neither abortion nor privacy in general are mentioned in the Constitution and, while one could quibble about the privacy issue — I would say that the fourth, fifth and fourteenth amendments relate pretty solidly to privacy although not necessarily in any way that would lead logically to a constitutional protection for abortion — I agree that abortion is not an issue actually in the Constitution but there is the whole unenumerated rights issue in the ninth amendment. If the Constitution recognizes the existence of unenumerated rights, how can you conclude that one of those rights isn’t broad enough to cover a right of a woman to determine and control the extent and timing of her reproductivity in such a way that she has a right to abort when she feels it inconvenient to bear to term?
More generally, some that I’ve conversed with tend to speak as though the ninth amendment was a virtual non-entity in constitutional terms. That is to say, they think that any reference to the ninth amendment in protecting an unenumerated right is simply an open invitation to judges to make stuff up as they go along and that’s pretty much a danger. On the other hand, the framers clearly wished to leave room for judges to recognize and protect unenumerated rights. That is to say, that the ninth is an originalist, textualist justification for what has come to be derisively called “activist” judging. That is to say, the framers did not expect or want future judges to be limited to the rights specifically enumerated in the Constitution.
I think this principle is also inherent in the constitutional system of limited government in the sense that the government must justify any action by some textual grant of authority. That is, if the Constitution doesn’t say that the government can do a thing, it can’t do it. That approach leaves the field pretty open, it seems to me, for judges to say, you can’t interfere with a woman’s control over her reproductivity for the simple reason that the Constitution doesn’t grant you that power.
I’m not a lawyer or expert in any way so I may have expressed myself poorly in my non-lawyerly way and I’m not trying to provoke a fight. Rather, I’m trying to find out your approach to unenumerated rights jurisprudence and your argument for why reproductivity control isn’t included.
Thanks.
PS.: I’d value input from any others, as well.
Craig R. Harmon (9c8878) — 6/9/2006 @ 10:21 amCraig,
A good argument could be made that the 14 amendment prohibits an abortion:
“Section. 1. 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.”
Now, an unborn child is not a citizen according to the 14th amendment, but if you look at the complete section you will see that the amendment says “nor shall any State deprive any person of life, liberty, or property, without due process of law.” It can be reasonably assumed that an unborn child is a person, albeit an undeveloped one like a toddler, and has 14th amendment protection of a right to life and that live shall not be deprived without due process. I am unable to find any law that gives a mother, or an abortion provider, the due process authority that allows for the death of an unborn child.
Just what is Due Process? Here’s one of several rulings:
“Phrase means that no person shall be deprived of life, liberty, property or of any right granted him by statute, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing, Pettit v. Penn., La.App., 180 So.2d 66, 69.” Black’s Law Dictionary, 6th Edition, page 500.”
http://www.criminalgovernment.com/docs/duproc0.html
It looks to me that the Constitution forbids an abortion as it deprives an unborn child their right to life without due process. How can a mother’s right to privacy or reproductive rights overrule the right of due process guaranteed by the Constitution to every person, including an unborn child? Perhaps someone can help explain it to me?
Ray (be81f9) — 6/9/2006 @ 11:26 amCraig, #41:
Some argue that the Ninth Amendment is no more than guidance for the lawmaking process i.e. the legislature passing a law and the executive signing it. They do not think that under Marbury v. Madison the courts can look at our society’s prevailing views and expectations of what our rights are and come up with discrete rights, judicially enforceable, such as the use of contraception or abortion. I see their quibble as being one with Marbury v. Madison and not actually with the meaning of the Ninth Amendment.
Others see the Bill of Rights as a whole, including but not being limited to the Ninth Amendment, and including the Fourteenth Amendment, conferring a general right to liberty which includes privacy. C.J. Roberts for one. They disagree on its extent.
If you are with the second group, and I am, you face the question of “liberty for what you like but no liberty for what you don’t like?” Your point, I believe. However, we accept that we balance the interests of society with those of the individual in all aspects of our lives. Where we can fault the Roe v. Wade court is in the weight it gave to a state’s valuation of children. (None). That was a wide veer from prior law, including the common law. For example, there is no tort of wrongful birth. Parents cannot sue a doctor for an unsuccessful vasectomy or tubal ligation simply because a child was born; or for failing to detect prenatal defects which result in a handicapped child. The child, as unwanted or imperfect it may be, is considered under those lines of law to still be a good thing. As another example that society values children, look at your real estate tax bill and see that about half of it goes to your local school districts. And there are many more examples. Roe v. Wade and Doe v. Bolton were not jurisprudence — they were legislation from a super-legislature.
nk (ca8012) — 6/9/2006 @ 11:57 amRay,
A couple of comments. You wrote:
“nor shall any State deprive any person of life, liberty, or property, without due process of law; …”
As I read that, that is a limit upon what the state can do, not on what an individual can do. Why does the 14th then tell a woman what she can do respecting whether she continues to bear her child or not?
“… nor deny to any person within its jurisdiction the equal protection of the laws.”
Now it may be reasonable to assume that a fetus is a person in respect of the law and I completely do not buy Blackmun’s Roe arguments for denying legal personhood to fetuses, but the simple fact is that for most purposes, fetuses are not considered legal persons, at least in respect of Constitutional rights.
Furthermore, as I read it, the “life, liberty and property’ clause clearly refers to the state acting in legal procedings against any person, since it refers to legal procedures that only apply to state actions. Abortion is not a matter of state procedure. It is strictly a personal matter that involves, depending upon what view one takes regarding the legal personhood of fetuses, two to four people: the pregnant woman, the fetuses father (although current jurisprudence does not, I believe, grant the father veto power over an abortion), the doctor and the fetus (which, as I say, currently has no right to life). That means that, currently, it’s between two people: the woman and the doctor. The state doesn’t enter into it except as it sees as it’s interest to protect it’s own interest in the “potential” (Blackmun’s word) life of the fetus, an interest which, under no circumstances, is allowed to prevent a woman from obtaining an abortion that some abortion provider is willing to declare to be in the health interest of the mother, as broadly defined to include every aspect of the patient’s life. Though I’m not a lawyer, I’ve investigated the legalities fairly carefully.
What I’m saying is, while you clearly disagree, I read the 14th amendment as restricted to what the state can and cannot do with regard to any person. Even if you assume that the fetus is a person, the 14th only means that the state cannot deprive the fetus of life, liberty or property (and face it, liberty, at least as defined as ‘not being incarcerated’, and property, which it is hard to see how a fetus can be said to possess property that the state could take). It says nothing about what a mother may decide to do with the advice of her doctor to the fetus.
Now, if you take the tack that the fetus is a person for purposes of constitutional protections, then abortions should be considered some form of manslaughter and a case can be made for that but that is not how it is currently viewed under the Constitution. The closest that has come to that position in practice are statutes that include a fetus who dies in the killing of her/his mother may be included as a second (or more) victim at the trial of the accused killer. Even those statutes, though, contain disclaimers of a sort that specify that the statute does not apply and cannot be applied to one who obtains or to one who performs an abortion, provided that the mother consents to the procedure.
“Now, an unborn child is not a citizen according to the 14th amendment, but if you look at the complete section you will see that the amendment says “nor shall any State deprive any person of life, liberty, or property, without due process of law.” [Me: precisely: the state may not deprive any person of these three things] It can be reasonably assumed that an unborn child is a person, albeit an undeveloped one like a toddler, and has 14th amendment protection of a right to life and that live shall not be deprived without due process.”
So while I’d like to agree with your argument that the 14th amendment disallows abortion, that is obviously not the way the law stands at present and I’m don’t see how it can be read to prohibit a woman from procuring and abortion.
On due process, the definition that you provide sounds exactly right except that within the context of the 14th, it refers to state action and what requirements the state must meet before depriving a person of life, liberty or property or any statutorially enacted privilege, not private action.
NK:
I have no interest in defending Roe v. Wade or it’s fraternal twin, Doe v. Bolton. How prevalent is the first view of the ninth amendment? And doesn’t that make the ninth rather the odd amendment out in that it doesn’t raise any justiciable issues, only guidance for legislatures? I mean, the entire Constitution is, in some sense, guidance for the legislatures. Why should the ninth, which specifically mentions rights, like those rights enumerated in the other amendments but not restricted to those that are enumerated, be exempted from raising justiciable issues, other than one’s dislike of activism in the judiciary? What is there about the ninth that makes it only a guideline? Furthermore, if it is only a guideline, it would not prevent a state from “creating”/recognizing a state constitutional right to abortion. Would that not, then, become a right that the ninth amendment would make enforceable in the courts? Probably a crazy question, I know, it sounds crazy to me, but it also sounds logical to me. [shrug] Anyway, if I don’t ask, I don’t learn. I can learn even from asking crazy questions, I guess.
Of course, since you are in the second camp, you’re probably not the person to ask, I suppose.
Craig R. Harmon (f78cfc) — 6/9/2006 @ 5:50 pmCraig, #44:
You wrote: “… it would not prevent a state from “creating”/recognizing a state constitutional right to abortion.”
Exactly. You hit the nail right on the head. Under the most extreme feferalist philosophy, the Ninth Amendment is claimed to only allow the states to create enumerated rights in their constitutions not found in the federal constitution. I’m sorry I left that out in the first place. It’s not a crazy question at all — I know that a Supreme Court nominee expressed that view practically verbatim during his confirmation hearings but I cannot remember who it was.
I do not know how prevalent the first view of the Ninth Amendment (from my prior comment) is. It’s never been upheld in any case that I know of.
nk (8214ee) — 6/9/2006 @ 6:54 pmNK,
Thanks for your response. I’m still hoping that Patterico will chime in or, as an alternative, someone could point me to something he might have blogged on the ninth.
Also, perhaps you would give your opinion on the 14th amendment issue that Ray raised and my response. That is something that I’ve debated with others elsewhere without really coming to a good conclusion.
Craig R. Harmon (f78cfc) — 6/9/2006 @ 7:22 pmYou’re 100% right on the Fourteenth Amendment. It only applies to state action. You might be able to stretch it to a sheriff abandoning the jail so a mob could lynch a prisoner (very big maybe). There was a recent Supreme Court case, Castle Rock v. Gonzales, which held that a mother had no case against the police for ignoring her request to enforce an order of protection against her husband even though he had kidnapped and eventually murdered her three little girls.
nk (947b03) — 6/9/2006 @ 8:11 pmThanks alot, NK.
Craig R. Harmon (7ca9b1) — 6/9/2006 @ 8:36 pm