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Last night Franken was at a off the record speech by Scalia and then confronted him at an on-the-record cocktail party about his claims of being a strict constructionist and originalist.  

Franken has big brass ones.  He walks up to Scalia and says ``Now you know abortion was not always illegal in this country'' to which Scalia sternly responded ``I know you are wrong.''

Guess who was right?
UPDATE: The Princeton professor on the Franken show was Christine Stansell, who works on American history; as noted in the comments below, the understanding about the lack of regulation on abortion in the early US was discussed in full in the original Roe v. Wade decision.

On his show this morning, Franken had a Princeton professor who teaches a class on gender studies.  She pointed out that ``women's issues'' such as abortion were below the radar screen of the founding fathers and not picked up until the mid 1800s when the AMA pushed to render abortion illegal.  Prior to that it was not regulated at all. Moreover, she said that no enforcement really kicked in until the 1940s.  

Al was right!

And, big hearted man that he is, he wants NO apology from Scalia.  

He just wants Scalia to realize that as a strict constructionist and originalist he needs to reverse his views on abortion and Roe v. Wade.  

Originally posted to dlcox1958 on Tue Nov 22, 2005 at 10:56 AM PST.

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Comment Preferences

  •  Amazing (none)
    I had no idea.  Thanks for this diary, I think it's going to come in very handy.

    War is not an adventure. It is a disease. It is like typhus. - Antoine De Saint-Exupery

    by Margot on Tue Nov 22, 2005 at 10:56:57 AM PST

    •  Not the first to point this out... (4.00)
      Some people thought that the common law argument was better than the Roe type of argument.  A good place to find out more on the topic is here.
    •  asdf (4.00)
      It's in the decision. Anybody that didn't now abortion was legal in the US until the mid to late 1800s hasn't read the actual decision. Apparently that includes Scalia.
      •  I'm sure Scalia (4.00)
        knew that he was incorrect, but didn't care.  He's an asshole.  Even his sickening admirers know that.
        •  Yep... (none)
          What's Franken going to do? Whine about the stupid know-nothing supreme court justice on his radio show? Nobody can say to Scalia "You are wrong and, because of that, you are fired." He could say the moon was made of green cheese and the sun revolves around the earth and there nobody can tell him differently.

          His "I am sure you are wrong" line was probably not at all related to the historical fact of Franken's statement. It was "I am sure you are wrong [if you think your silly facts have any bearing in this discussion. Go fuck yourself.]"

          The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

          by Shapeshifter on Tue Nov 22, 2005 at 03:05:04 PM PST

          [ Parent ]

        •  If you're right, my plan is doomed! (4.00)
          I hoped to save the country by sending Scalia a large type copy of the constitution along with a gift certificate for a pair of reading glasses.  So you're saying that he knows he's wrong most of the time?

          I'm crushed.

      •  most discussions about Roe v. Wade (4.00)
        on news programs or in print usually reflect a displined avoidance of reading the actual opinion. I personally had forgotten about the issue the diarist brought up until I heard the Roe v. Wade oral arguments on CSPAN a few weeks ago.

        Here is the audio of the arguments from CSPAN. (realplayer)

        rtsp://video.c-span.org/60days/ac111205.rm

    •  But when did it become a medical procedure? (3.50)
      One question I have here is when did abortion become a semi-common medical practice?  I mean up until 1940, there was no effort to regulate it and at that point, it was the AMA that was pushing it.  Why were they pushing it, and why then and not previous to that?  I know there have always been ways to have abortions involving various pratices including taking certain herbs, etc.  But when did the modern practice of it really get started?

      If it got started in like 1900 and it took 40 years for them to get around to it, that would be suspect.  If it got started in 1939, then I think you could legitimately argue that the laws could be interpreted to accomodate a new situation.

      Of course at some point this all gets back to what your definition of strict constructionism is.  If it's to such a radical degree that anything not explicitly applicable in the days of Jefferson is considered beyond the law, then sure this applies.  But I don't think even Scalia is quite that radical about it.

      --- If trickle down economics worked, Marie Antoinette wouldn't have lost her head

      by sterno on Tue Nov 22, 2005 at 01:05:56 PM PST

      [ Parent ]

      •  asdf (4.00)
        Here's the argument that should be used against originalists who support anti-abortion laws. The 14th amendment was enacted in the 1860s, I can't remember the exact year. At that time, abortion was legal. Those who wrote and passed the 14th amendment did not view a fetus as a person since it was legal to deprive a fetus of life. So an originalist should interpret that as a fetus does not have a right to any constitutional protection if the constitution is interpreted literally as it was originally written.

        Scalia is not an originalist or strict constructionist. He's a "I'm going to do whatever I please"-ist.

        And there was an effort to regulate abortion well before 1940. In the mid 1800s, there was a movement by two groups - physicians who didn't want mid-wives getting their business and religious groups who thought abortion led to promiscuity.

        •  ideologue (4.00)
          He's a "I'm going to do whatever I please"-ist.

          Good definition of an ideologue.

        •  Fetuses have no rights... (4.00)
          ...it says so in the constitution, 14th amendment:

          "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."

          You can argue if a fetus is a baby and you can argue when life begins, but a strict constructionist interpretation would say that being neither born nor naturalized in the United States, a fetus is not a citizen.  Therefore, it logically follows that a fetus has no rights under the constitution.

          The revolution will not be televised

          by Uranus Hz on Tue Nov 22, 2005 at 02:30:22 PM PST

          [ Parent ]

          •  Just a Question (none)
            I like your argument but it's not like non-citizens have NO rights at all. You can't for instance kill a tourist from Germany with impugnity. For the lawyers on this site, what does apply to non-citizens? Do they have a right to avoid unreasonable searches and seizure? To bear arms, etc? I mean I'm sure there are whole courses on this at law school but what's the 2-bit layman's answer?

            "They don't think it be like it is, but it do." Oscar Gamble, 1980.

            by Spider Stumbled on Tue Nov 22, 2005 at 02:48:25 PM PST

            [ Parent ]

            •  asdf (4.00)
              This isn't the argument that is used to justify a woman's right to medical privacy. It's the argument that's used to debunk the myth of the "originalism" or "strict constructionism" of people like Scalia who oppose abortion rights. In other words, it's a way of calling lying liars exactly what they are.

              The true argument is that the 14th amendment guarentees the right to liberty, and also equal protection under the law. Forcing pregnant women to bear children against their will is forcing them to turn their body over to another, something that the government doesn't force any other class of people to do. It violates a woman's right to liberty, since pregnancy is a health risk and liberty means being able to choose what health risks you face. And it violates her right to equal protection, since you can't even take blood from a man or non-pregnant woman against their will for use by another. So the non-citizen thing has no bearing on the issue. This is entirely about what the government can and cannot force a class of people to do.

              •  The flaw in this argument (none)
                is that women are not 'forced' to get pregnant in the first place (except for some obvious exceptions - but, in reality, rape and incest cases account for a tiny fraction of the abortions performed in this coutry).

                Using this argument plays right into the wingnut's talking point of personal responsibility.  They can make the claim that having sex is a choice women make, and if they chose to have sex and then get pregnant they need to accept the consequences (As if living with the knowledge that you had an abortion is not a consequence.)

                It's a dispicable argument, but it scores big with the 'holier than thou' crowd.

                The revolution will not be televised

                by Uranus Hz on Tue Nov 22, 2005 at 03:46:45 PM PST

                [ Parent ]

                •  personal responsibility (4.00)

                  Eating steak tartar or sushi is a personal choice and tapeworms can be a consequence of that. That doesn't mean we have personal responsiblity to nurish the tapeworms.

                  The anti-abortionists are like people who disable the brakes and steering on your car and then say you need to take personal responsibility for the resulting accident because you pushed the accellerator. Especially the ones who also oppose birth control.

                  A potential consequence of planting a tree in your front yard is that the tree could later fall and damage property or kill someone. But we plant the tree knowing that in the future we can cut the tree down if it poses too great a threat.

                  If you bring a baby into this world, then you have personal responsibility to support it. People who had sex did not, in general, make a conscious choice to have a baby. People who carry the baby to term, did.

                  I agree that having to make a difficult choice is a potential consequence of having sex. Carrying a baby to term and supporting it afterwards are a consequence of the choice, not the sex.

                •  Why argue on their (or your) terms? (none)
                  1.  You argue the only rape & incest are "forced."  There are many reasons women & girls decide to terminate a pregnancy and the grand majority of females feel these other reasons to be "forced" upon them.  The new baby will: endanger their health, indefinitely extend a bad relationship/marriage, significantly reduce the time/emotion/money required by other children, etc.  A baby changes everything.  Note, the second or third (depends on study) cause of death to a pregnant woman is homocide.  Think about that.  Other people (male) do NOT want the woman to have a child.  Some are willing to kill to keep that from happening.  Others will just make the woman life hell.
                  2.  "They need to accept the consequences"  A) Abstinence is the only birth control that is 100% so that line of argument means that women are not allowed to have sex with men unless they are willing to have a baby and raise it for 18 years.  B) "They" should include MEN.  
            •  Murder is a crime (none)
              under state law, not federal law.  If you kill a German tourist at Disney World, you are charged, tried and sentenced under FLorida law. Federal murder statutes pertain to areas where jurisdiction is less clear, or when federal officials are the victims, or when murder is committed as part of an insurrection, or when a murder is committed in conjunction with a federal drug crime or some other federal crime legislated under Congress' authority over inter-state commerce.  
            •  I know the a lot of the same folks who argue (none)
              fetuses have a right to life as guaranteed by the constitution also claim 'enemy combatants' have no right to due process , for the simple reason they are not US citizens.  The constitution makes no distinction, as far as I can tell, between 'citizens' and 'people' with regards to the rights to due process and to life.  But even the 'right to life' only exists in the constitution if you read the 5th amendment with several major elipses to completely alter its meaning. To wit:

              "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." - US Constitution, 5th amendment

              Becomes:

              "No person shall be ... deprived of life..." - US Constitution, 5th amendment

              Which also raises the argument of whether a 'fetus' is a 'person' at all.

              This, of course, is based soley on my own reading of the words.  I am not a lawyer, nor a constitutional scholar.  But nitpicking over semantics and the specific meaning of words and phrases is what lawyers do for a living. Case in point: the whole crux of the defense of Clinton came down to whether or not the legal definition of 'sexual relations' included receiving a blowjob.  If it did, then he commited perjury, if it didn't then he did not. (And even more technically speaking, it's only perjury if it is 'willful, deliberately false testimony under oath.' - see Libby, Scooter. So if he truly believed 'sexual relations' did not include blowjobs and wasn't, therefore, deliberately lying, then it wasn't perjury either.  BTW, he was aquitted.  But I digress).

              I don't know how lawyers think about this stuff day in and day out.  It makes my brain hurt.

              The revolution will not be televised

              by Uranus Hz on Tue Nov 22, 2005 at 03:28:40 PM PST

              [ Parent ]

              •  Ignores the mother (none)
                The act of being pregnant and giving birth is not to be ignored.  Doing these things to save the life of a fetus is what you are requiring.  A father is not required to give a kidney to save a child under any law.
              •  Not Perjury in Any Event (none)
                Legally, the lie under oath has to be to a material fact.  Whether or not Clinton had "sexual relations" with Monica Lewinsky was not material to the question of whether he sexually harassed Paula Jones.
          •  Not so sure. (none)
            As I understand it, there are some rights that are guaranteed to citizens as citizens, like voting rights, but others that are guaranteed to humans as humans. Minors, tourists, and non-citizen residents have the latter. (Even, I would assume, illegal combatants?) I suspect that anti-abortionists make their case on the latter grounds. Although talk about originalism or strict construction! Where in the constitution is a fetus awarded the right to be born?
          •  Yeah, well neither was a corporation, (4.00)
            but no one let that stop them.  

            "Ah, you come from one of those Americas. You have my sympathy." - Neil Gaiman

            by PatrioticallyIncorrect on Tue Nov 22, 2005 at 02:49:11 PM PST

            [ Parent ]

        •  Strict Construction and Originalism (none)
          It ought to be noted somewhere that "strict constructionism" is not the same as being an "originalist."

          And, contrary to what the diarist points out, Scalia can be a "strict constructionist" and oppose Roe.

          The point, though, is that opposing Roe is probabably not an "originalist" position.

          Which leads to your point -- Scalia is a realist in the truest sense of the word.  He makes is decision and then goes back and finds a way to justify it.  Its just that folks do more advertising about his "strict constructionist" justifications and "originalist" justifications than others.

          Scalia is a realist -- the more pejorative term (and appropriate one) -- is, as you say, "I'm going to do whatever I please"-ist.

          MRL, J. Concurring.

          It's a "partial repeal of the First Amendment" not a "flag burning" amendment.

          by MRL on Tue Nov 22, 2005 at 02:30:52 PM PST

          [ Parent ]

        •  The word you're looking for is... (none)
          "Aristocrat"

          The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

          by Shapeshifter on Tue Nov 22, 2005 at 03:01:22 PM PST

          [ Parent ]

          •  you mean (none)

            The revolution will not be televised

            by Uranus Hz on Tue Nov 22, 2005 at 03:31:36 PM PST

            [ Parent ]

            •  No, i mean... (none)
              An "aristocrat" as in someone who thinks laws only apply to the peasantry. Someone who believes their views are not allowed to be discussed by "lesser people". Someone who thinks they're right by virtue of their luck in the grand lottery of "birth".

              I mean someone the founders of our nation repudiated (whether or not they meant to) strongly. I mean a group of people who have been more or less dead to the point where people today don't even understand what is meant by the word or who don't recognize "aristocracy" when it bites them on the face.

              Of course, i shouldn't say that. Aristocracy was not "dead", but "sleeping"

              The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

              by Shapeshifter on Tue Nov 22, 2005 at 04:10:09 PM PST

              [ Parent ]

      •  AMA pushed the medical abortion (4.00)
        as part of their 'cornering the market' on medicine as a profession and kicked (mostly female) midwives out. As doctoring became more grounded in science and developed a higher status, women were less and less welcome to practice except as an inferior (nurse) under a doctor's direction.

        To be fair, midwives were informally taught and their practices could range from pretty good to dangerous. Of course, during much of the 18th to early-20th centuries, the same could be said of doctors.

        "Help us to save free conscience from the paw -- Of hireling wolves whose gospel is their maw." --John Milton

        by ohiolibrarian on Tue Nov 22, 2005 at 02:22:57 PM PST

        [ Parent ]

        •  But... (none)
          ... In Your Comment

          midwives were informally taught and their practices could range from pretty good to dangerous. Of course, during much of the 18th to early-20th centuries, the same could be said of doctors.

          Why are you limiting this to the 18th to early-20th centuries?  As of today, one of the top leading causes of death in the US is by doctor -proscribed medical accidents.

          •  but ... (none)
            ... most medical accidents occur during botched surgical procedures, and in most of those cases, without intensive medical care the patient would quickly die.
          •  word use (none)

            I am not one for spelling flames, but you wrote "proscribed" when you meant "prescribed" and the two words have opposite meanings, a mistake you might not want to make in the future. For example, cruel and unusual punishment is "proscribed" rather than "prescribed" by law. Also, I think the medical mistakes include more than just prescribing the wrong drug or treatment. But otherwise, my reaction was about the same as yours.

        •  Women (4.00)
          have been aborting fetuses for thousands of years; sometimes successfully and sometimes taking their own lives as well.  Women are genetically predisposed to reproduce and nuture children.  When we are not able to do both functions, we instinctively know it.  The choice to abort, made as a result of that inability to nurture is often painful but necessary.
          The AMA, primarily men, protecting their financial domain, regulated this practice.  

          You can make all the laws you want on this issue.  Women will ALWAYS choose control over reproduction.  Whether they will live or die in America having this procedure is the salient issue.

          If you tell the truth you don't have to remember anything-Mark Twain

          by Desert Rose on Tue Nov 22, 2005 at 07:36:51 PM PST

          [ Parent ]

      •  If it got started in like 1900 and it took 40 year (none)

        If it got started in like 1900 and it took 40 years for them to get around to it, that would be suspect.  If it got started in 1939, then I think you could legitimately argue that the laws could be interpreted to accomodate a new situation.  

        Idiots.  Life and Death are always inherent in reproduction.  Once that conception occurs it is a roller-coaster ride.  Once that labor comes there is not stopping it.  The outcome may be good or maybe not.  Conditions of life puts the power of life and death in the WOMAN'S hands.  Abortion is as ancient as humanity.

      •  Not "medical issues" (none)
        in early America--midwives, rather than doctors, were in charge of women's reproductive health.  The battle between the midwifery model and the medical model had more than a pinch of chauvanism in it.  When the medical model won, the male-dominated medical profession won, and they basically declared war on women's reproductive rights (and I include contraception and childbirth choices in there).

        I could go off on a tangent about how the intrusion of doctors into the midwifery model of reproductive care actually increased maternal and infant mortality because doctors did not pay as much attention to cleanliness as midwives, and sometimes did horrible things like go from patient to patient without washing hands--way to wipe out an entire maternity ward!!  But anyway...

      •  Speaking of herbs and abortion... (none)
        ...I remember a Scandinavian Studies prof of mine telling me that there was a Swedish folk song that invoked the names of several herbs: it turned out all the herbs could be used to induce an abortion, though the song spoke of something else. It's interesting how knowledge is preserved.
    •  Nice sig. line. (none)
      I'm reading Terre Des Hommes.
      •  I haven't read that (none)
        His story is very affecting to me. We read Le Petit Prince in high school, eons ago.  

        War is not an adventure. It is a disease. It is like typhus. - Antoine De Saint-Exupery

        by Margot on Wed Nov 23, 2005 at 08:06:14 PM PST

        [ Parent ]

  •  ALL THE MORE REASON TO (4.00)
    TELL YOUR SENATORS, STOP ALITO:

    http://petition.savethecourt.org/...

    AND WHILE YOU'RE AT, SIGN PLANNED PARENTHOOD'S PETITION, TOO:

    http://www.ppaction.org/...

    And NARAL's:

    http://prochoiceaction.org/...

    AND DON'T FORGET: URGE CONGRESS TO SUPPORT PLAN B:

    http://www.prochoiceamerica.org/...

     

  •  uh (2.53)
    A "gender studies professor?"  Hmmm.  How well versed would this person be in Constitutional law?

    He may look like an idiot and talk like an idiot but don't let that fool you. He really is an idiot - Groucho Marx

    by AlyoshaKaramazov on Tue Nov 22, 2005 at 11:06:39 AM PST

    •  It wasn't a constitutional question. (4.00)
      The question for the professor was whether abortion had always been illegal in this country, which apparently was Scalia's contention.  The professor was not asked for any constitutional analysis.
    •  Should have done all the homework. (4.00)
      The professor was Christine Stansell, a professor of American History.  I suspect she knows her `stuff' when it comes to the history of abortion regulation in this country.  
      •  Scalia's speech:" Scalia Raps Gore '00" (none)
        got reported behind a wall in NY Post but from the teaser, Scalia slams Gore on election 2000. He's a crybaby. Booo bwaaah, it was gore's people and they had no choice. (paraphrasing)

        but here is a quote: "The issue here was whether Florida's Supreme Court or the United States Supreme Court [would decide the election]. What did you expect us to do? Turn down the case because it wasn't important enough?"
        Piece-a-work, this guy.

        (hat tip rawstory)

        http://www.nypost.com/...

        Let's stop feeding greed. In fact, propose we make it a commandment: The greedy shall not be fed.

        by idredit on Tue Nov 22, 2005 at 01:24:25 PM PST

        [ Parent ]

    •  uh... (4.00)
      One thing a gender studies professor can be pretty certain to know inside & out is the social & legal history of reproductive issues in the United States.  S/he may not know squat about interstate commerce or immigration law, but abortion, birth control, women's property rights, & family law will all have been studied thoroughly, because they're essential knowledge for the field.

      Compromise is something you do behind the scenes. Stop doing it in public. -Atrios

      by latts on Tue Nov 22, 2005 at 11:17:35 AM PST

      [ Parent ]

    •  well, they are damn well versed. (4.00)
      and they know more than that fruitcake currently stinking up the supreme court.
      •  No, no, (4.00)
        Scalia is a brilliant legal scholar. The MSM says it over and over, so it must be true.

        With all seriousness, I can't take anybody seriously who uses "original intent" or "strict constructionist" or "judicial activism" or "legislating from the bench" with a straight face. These are all conservative code words for "I don't like that decision that gives rights I don't like to other people. Wah, wah, wah!"

        Scalia is a twerp.

        America: It's a good IDEA for a country ...

        by Tony Seybert on Tue Nov 22, 2005 at 11:31:14 AM PST

        [ Parent ]

        •  Scalia Writes Some of the Most Eloquent..... (4.00)
          ....legal opinions.  He may be the best WRITER on the bench.  As for his legal analysis, however, he is an awful judge.  
          •  he pales compared to Rob't Jackson (none)
            who may ahve been the finest writer ever on the court  see his opinion in W Virginia Board of Education v Barnette for an example of what I mean

            Those who can, do. Those who can do more, TEACH!

            by teacherken on Tue Nov 22, 2005 at 12:21:33 PM PST

            [ Parent ]

          •  Maybe now, but not ever... (none)
            Nope, I'd have to give that one to Oliver Wendell Holmes, Jr. (although his dad was an even greater writer...)

            [-7.13, -8.41 http://www.politicalcompass.org/]

            by evilpenguin on Tue Nov 22, 2005 at 12:45:46 PM PST

            [ Parent ]

          •  The MSM says it over and over, so it must be true. (none)
            It's much easier to research ways to write eloquently when one never spends time researching the truth.  His opinions contain some of the most tortured logic imaginable.

            Until liberals actually have power in this country, shut your whining conservative trap.

            by Hose B on Tue Nov 22, 2005 at 02:02:06 PM PST

            [ Parent ]

          •   Really!?? (4.00)
            I see and hear that assertion a lot, but I don't see it in his writing.  I think that at times it is clever and facile, but I don't find it elegant, and I certainly don't see any support for the belief that he is the best writer on the bench.  I think that has become the CW about Scalia, an idea that originated with conservative law students and became so oft-repeated that it acquired a truth all of its own.  

            After all, how many people are going to actually sit down and read enough SCt opinions by enough justices to support or contest the assertions?

            I certainly didn't find anything memorable in reading Scalia opinions in law school (other than the fact that I was appalled at how he cherry picked his precedents and deliberately skewed or revised the interpretation of a line of cases).  But maybe I just happened across all the mediocre ones, and there is a whole canon of elegantly written Scalia opinions that completely escaped my notice.  

            Reality addict - can't get enough of seeing it all clearly

            by writeout on Tue Nov 22, 2005 at 04:09:57 PM PST

            [ Parent ]

        •  Original Intent of 2nd Ammendment (none)
          Dirks, pikes, bows, arrows and muskets only.

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

          by Gooserock on Tue Nov 22, 2005 at 02:13:54 PM PST

          [ Parent ]

    •  asdf (none)
      You don't have to be versed in any law, just able to read the decision. It is in the Roe v Wade decision itself!
    •  Who ever they are, they know better than Scalia. (none)

      "But the sea is wide, and I can't swim over, and neither have I wings to fly . . ."

      by bobdevo on Tue Nov 22, 2005 at 12:55:41 PM PST

      [ Parent ]

    •  There is no historical record. (none)
      We must answer the question based on personality stereotypes.
  •  How many cells does it have to be ... (4.00)
     .. before it becomes a petard?

    -5.13;-6.92 Bu$hCo is an agressive cancer: emergency radical surgery is required

    by Yellow Canary on Tue Nov 22, 2005 at 11:09:03 AM PST

  •  Just wondering (3.75)
    Would not a strict constructionist believe in slavery?  Many of our founding fathers owned slaves.
    •  yes of course! (none)
      an interesting irony for Justice Thomas!
      •  When they overturn (4.00)
        Roe v. Wade, it will be by a vote of 4 3/5 to 4.

        America: It's a good IDEA for a country ...

        by Tony Seybert on Tue Nov 22, 2005 at 11:32:47 AM PST

        [ Parent ]

      •  no, because... (4.00)
        The 13th Amendment to the Constitution specifically outlaws slavery.  Your originalists, I believe, look to the legal context at the time the statute or constitutional provision in question was passed for guidance to interpretation.  

        Anyway, apart from the fact that the text of the Amendment is very explicit, they would be looking to the 1860's for context, not the 1790's.

        If we managed to pass an amendment to the Constitution explicitly stating that the Constitution recognizes an explicit right to privacy, and that this right includes the right to legal abortion, neither originalists nor strict constructionists nor anyone else would have a leg to stand on.

        "Patriotism is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime." -- Adlai E. Stevenson

        by eebee on Tue Nov 22, 2005 at 12:51:49 PM PST

        [ Parent ]

      •  Clarence Thomas (none)
        Ole Clarence would favor slavery if he could be the slavemaster.
    •  No (3.66)
      A strict constructionist would recognize subsequent Constitutional amendments, to be interpreted as the authors of those amendments intended. The 13th Amendment ended slavery.

      I've got blisters on my fingers!

      by Elwood Dowd on Tue Nov 22, 2005 at 11:22:03 AM PST

      [ Parent ]

      •  OK, stand corrected. (none)
        good point.  
      •  Of course.... (none)
        ...that doesn't stop a few lunatics from bitching about the Amendment that legalized the income tax. And I seem to recall Alan Keyes saying that Senators ought not be directly elected.
        •  They may be lunatics... (none)
          ...but they have a point. At the time the (16th?) amendment was passed the term "income" had a somewhat different meaning than it does today, applying only to what we now call "unearned income," that is dividends, interest, and rents. It specifically did not apply to wages, and in the beginning, in fact, nobody paid income tax on wages. (The income tax was pushed hard by dems and other populists at the time, and loathed by replublicans). This makes it all the more ironic that the republicans are attempting to repeal all income taxes on dividends and capital gains, which would leave the income tax essentially applying only to wages.
      •  Actually (none)
        there are a few people who, while accepting that the 13th Amendment outlawed slavery, believe that the 14th Amendment has been misused as a basis for guaranteeing civil rights for African Americans and other minorities.  

        Sometimes you cover your ass with the lame excuses you have, instead of the lame excuses you wish you had. (-3.00, -5.49)

        by litigatormom on Tue Nov 22, 2005 at 11:39:16 AM PST

        [ Parent ]

        •  that was the original intent. (none)
          The purpose of the 14th amendment, in original intent, was certainly intended to protect individual rights from abrogation.

          The point of the 14th Amendment was precisely that: to prevent any of the defeated states of the Confederacy from reneging on their duties and responsibilities which came along with their defeat and allowing them back into the Union.

          And the intended object of those freedoms was obviously the newly freed slaves, with the 14th amendment designed to prevent new state laws from resimulating slavery.   It worked until the feds gave up on Reconstruction.

          Protection of abortion rights is certainly less grounded in an "original intent" than the intent of the 14th to protect civil rights of minorities.

          I don't believe original intent or strict constructionism is proper constitutional interpetation either.   The 9th Amendment directly and explicitly says so.

    •  Well, sort of (none)
      While the founding fathers refused to make slavery unconstitutional, the 13th amendment did the trick.

      "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

      Section 2. Congress shall have power to enforce this article by appropriate legislation."

      The 13th is also the answer to that great constitutional trivia question: "What is the only amendment that constricts american citizens freedom?"
      (All of the other amendments constrict the right of the states or the Fed to do, or to prohibit something.  The 13th prohibits individuals from doing something, i.e. owning or being slaves.)

      yea, I'm a geek.

      •  I challenge your trivia question (4.00)
        The 18th Amendment -- prohibition -- constricted the freedom of citizens. The 22nd Amendment -- two terms for Presidents -- constricts my freedom to elect whoever I want, and the freedom of the citizen-President to seek a third term.

        I've got blisters on my fingers!

        by Elwood Dowd on Tue Nov 22, 2005 at 11:35:12 AM PST

        [ Parent ]

      •  au contraire (none)
        Actually, the 13th Amendment frees a class of people--those who would otherwise be slaves. Tell me you aren't seriously saying that people's "right to be slaves" is being infringed. That's like saying that habeas corpus infringes on my "right to be imprisoned".
        •  no, the commenter... (none)
          was saying that the amendment restricts a person's right to own slaves. And, technically, that's correct - it's restricting a right that people previously had.

          I think I can also speak for the commenter in saying that this particular restriction of rights is a good thing. Just pointing out a constitutional irony.

          -8.25, -6.26 ...it ain't "schadenfreude" if the bastards deserve it. this is infidelica...

          by snookybeh on Tue Nov 22, 2005 at 01:57:01 PM PST

          [ Parent ]

          •  not really. (none)
            Without slavery as an institution, it's impossible to have a right to own slaves, because there are no slaves--hence, nothing to own. I mean, if we're going to go with empty semantics here.
            •  uh... (none)
              you're saying that, prior to the constitutional amendment in question, there was no "institution" of slavery? Really? In what parallel universe?

              I tend to think that an "industry" that thrived for centuries can legitimately called an "institution." Especially one that has been historically referred to as the "peculiar institution."

              Look, you don't think I'm defending the practice of slavery, do you? I'm merely stating the obvious: that since before the United States even became a country, property owners had the dubious but legal "right" to own slaves, and that that "right," thankfully, was taken away from them by a constitutional amendment.

              This is not complicated. It is, however, a silly argument.

              -8.25, -6.26 ...it ain't "schadenfreude" if the bastards deserve it. this is infidelica...

              by snookybeh on Wed Nov 23, 2005 at 05:00:22 AM PST

              [ Parent ]

              •  meh. (none)
                you're saying that, prior to the constitutional amendment in question, there was no "institution" of slavery? Really? In what parallel universe?

                No. I'm saying that afterwards, there wasn't one. Pay attention.

                since before the United States even became a country, property owners had the dubious but legal "right" to own slaves

                Let us assert that they still have this "right", but that by law, there are no longer any more slaves--to own or otherwise. Let me also suggest that they still have the right to own unicorns. And then see above about empty semantics. This will be my last post on the subject.

    •  I know it's fun to think so, but no: (none)
      Strict constructionists do in fact allow for constitutional amendments....so they DON'T think slavery should be legal (except in a sweat-shop sort of way). However, it will be interesting how these people rule when someone tries to claim rights for fetuses.

      When Jesus returns, religious wingnuttia will have him committed to an asylum. - anonymous

      by Doug in SF on Tue Nov 22, 2005 at 12:06:10 PM PST

      [ Parent ]

      •  some of them really do (none)
        think abortion should be legal, but that it is not a federal constitutional issue (IMO an incredibly tiny percentage).  But yeah, by far "strict constructionism" is really just a rhetorical farce to accomplish their real goals.
    •  Been to Wal-mart? (none)
      Looks like the Walton family still does believe in slavery. Matter of fact, some of the slave quarters in someof those restored Plantations look better than some of the places Wal-mart currently live.
      •  (typo) (none)
        ...places Wal-mart employees currently...
        •  Slaves Are Too Expensive for Mal*Wart (none)
          Just figure the cost of the daily animal feed, veterinary services and overnighting shacks that would be needed to keep a slave on American soil reasonably productive for a profitable service life.

          Doesn't seem easy to beat $1-2 per hour of China and Mexico, and flat out impossible to beat $1 per day and less of some of the extreme 3rd world suppliers.

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

          by Gooserock on Tue Nov 22, 2005 at 02:11:08 PM PST

          [ Parent ]

    •  Yes, a strict constructioninst would believe in... (none)
      Yes, a strict constructionist would indeed believe in slavery were it not for the 13th and 14th amendments to the constitution.

      A strict constructionist (whatever that is) is required to strictly embrace amendments just as much as the constitution itself.

    •  Dred Scott is to slavery what... (none)
      the blastula/fetus is to abortion.  That's why GWB and other wing-nuts bring up the Dred Scott decision as a code about abortion and judicial activism.

      Do what you can, with what you have, where you are. - T. Roosevelt

      by ranger31 on Tue Nov 22, 2005 at 12:28:56 PM PST

      [ Parent ]

    •  And a right to bear single shot arms. (none)

      "When the going gets weird, the Weird turn pro" Hunter S Thompson

      by irate on Tue Nov 22, 2005 at 12:32:46 PM PST

      [ Parent ]

    •  Strict constructionism and the 9th amendment (none)
      seem to be at odds. My understanding is that the 'strict constructionism' ideology is essentially belief that the only rights are those which are explicitly stated in the constitution, and yet the 9th amendment explicitly states that just becuase the constitution doesn't explicitly state something is a right doesn't mean it's not.

      I think i just bruised my brain.

      The revolution will not be televised

      by Uranus Hz on Tue Nov 22, 2005 at 12:53:54 PM PST

      [ Parent ]

      •  They often seem to punt on that one (none)
        by noting that privacy, etc. are not explicitly mentioned in the Constitution.  Though, I've seen some switching on that point when it meets more conservative goals in a case.

        Just as hypocritical as compromising on Living Constitutional interpretations - perhaps moreso, since many Constructionists/Originalists claim some fundamentally "more correct" nature of their constitutional philosophy, yet still take conveniently conservative and far-right positions in extreme cases.  Simply mention Gore v. Bush to Scalia and his claim of constructionist correctness (and, implied integrity) becomes less comfortable.  Of course, there's many other examples, but that one was one of his few wins which created a rather significant payout that anyone can argue at face value, IMHO.

      •  The answer is simple. (none)
        Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        The original intent of the Ninth Amendment, well documented historically, was to preclude the idea that rights commonly held by precedent, history as well as history-independent morality (then called 'natural law') may be abrogated freely by government if they are not exactly listed in black letter law.

        And to make clear that the presumption of personal liberty ought to be the proper interpretation of the Constitution.  This amendment is not about Federal powers or relationship to States, but specific individual rights.

        Conclusion: Strict constructionism is clearly and explicitly denied by Constitutional law.  The theory is logically inconsistent, and thus erroneous.  The adopters of the Constitution were liberals, and original intent jurisprudence ought to follow this, and deny the fallacy of strict constructionism.

    •  Thomas is three fifths of a judge. (none)
      And the (unreconstructed) Constitution proves it.
    •  Their Answer: (none)
      That was changed with a constitutional amendment. Their argument is that this is the ONLY way to change the meaning of the constitution.

      "They don't think it be like it is, but it do." Oscar Gamble, 1980.

      by Spider Stumbled on Tue Nov 22, 2005 at 02:58:11 PM PST

      [ Parent ]

  •  Abortion not illegal (none)
    but would anyone do it?

    A peace vigil has as much effect on foreign policy as a debug vigil would on broken software.

    by RequestedUsername on Tue Nov 22, 2005 at 11:12:58 AM PST

    •  18th century midwives (4.00)
      Were quite adept at inducing abortions in women who they felt had gone through too many pregnancies.  They used herbs rather than surgical procedures, obviously.
    •  Yes (4.00)
      Stansell noted that it was primarily carried out by midwives and sympathetic doctors prior to the moment of quickening, about the end of the first trimester, when a fetus kicks.  Prior to quickening, the historical reference (dating to ancient times according to Stansell) was not to ending the life of a baby but rather to restoring menstruation.  I would assume the methods in use were not dissimilar to what we saw in Vera Drake.  
    •  Are you suggesting (4.00)
      that during times when:

      -being a bastard was a life-long stigma
      -being an unwed mother might mean you were either thought to be or had to become a whore
      -being an unwed mother was a sin and disgraced her family. She might be disowned by her family or married quickly to whoever would take her
      -there was limited birth control, and what there was didn't work well
      -large numbers of women died in or after childbirth often because they had children too close together,

      that women and their families would not opt for abortion?

      "Help us to save free conscience from the paw -- Of hireling wolves whose gospel is their maw." --John Milton

      by ohiolibrarian on Tue Nov 22, 2005 at 02:43:45 PM PST

      [ Parent ]

  •  The fact that there were no anti-abortion statutes (4.00)
    until the 20th century is quite relevant to the issue.  But in my view, the more important salient fact is that it is the 14th Amendment's liberty clause (as applied to the states) which is the real constitutional basis for respecting women's liberty rights.  The important "originalist" analysis, therefore, is not what the Framers of the Constitution may have thought, but rather it is what the Framers of the Civil War Amendments thought about individual liberty.  I think they valued liberty highly - Scalia (and Alito) apparently instead believe that the 14th Amendment specifically allowed some (mostly Southern) states to restrict liberty rather drastically.  This, to me, is counter-historical and counter-intuitive.

    Let justice reign though the heavens tremble

    by Viceroy on Tue Nov 22, 2005 at 11:15:23 AM PST

    •  The relevance (none)
      What sort of "unenumberated rights" did the founding fathers intend to protect with the 9th Amendment? If  abortion was illegal and widely prosecuted at the time, that would indicate that the founders saw no problem with the government forbidding it.

      I've got blisters on my fingers!

      by Elwood Dowd on Tue Nov 22, 2005 at 11:25:36 AM PST

      [ Parent ]

  •  This is an important diary (none)
    as Al Franken is the most brilliant person I know.

    (How's was that?...can I be Al's personal legal advisor now?)

    Freedom does not march. I saw an invasion. I see an occupation. I don't see a war. "Constant war is not a family value." Cindy Sheehan 8/22/05

    by ex republican on Tue Nov 22, 2005 at 11:27:39 AM PST

    •  Not so sure about that... (none)
      If Scalia would give Al the Abortions, would Al give Scalia these following points?

      1. bring back the concept of thinking of some people as property

      2. do away with women's lib

      3. neglect to enforce control of narcotics such as heroin, opium, and amphetamines

      4. not worry about weapons proliferation, nuclear issues, or chemical weapons.

      It just seems like a problematic argument, if Scalia thought about it for a second...

      The only way it scores points is by exposing how the terms "constructionist" and "originalist" are really full of it in terms of what we expect from government today.

      --

      You see, what confuses the world is the incongruity between the swift flight of the mind and matter's vast clumsy slowness...

      by Hauer Santos on Tue Nov 22, 2005 at 02:24:39 PM PST

      [ Parent ]

  •  There Is No Means to Get This Fact Known (4.00)
    widely in the u.s.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

    by Gooserock on Tue Nov 22, 2005 at 11:31:22 AM PST

    •  That just about sums it all up (4.00)
      Though I suppose a recommended diary on DKos is better than absolutely nothing.
    •  Why would you say there is no means? (none)
      When you write, "There Is No Means to Get This Fact Known widely in the u.s.", how exactly do you define "widely." I don't think the multiplication tables (say, beyond 7x7) are known all that widely in the U.S. at this time. The name of the current Attorney General of the U.S. is probably a mystery to a large percentage of people.

      So when you speak about "known widely," would it be sufficient if as many people knew about this as now know about, say, the "smallpox blanket" story in connection with Native American deaths? Because that kind of knowledge is now much more common than it was even ten or fifteen years ago.

      I agree that it is daunting to find ways to spread information, but I don't think this is the time to be giving up, just when we are making some progress.

  •  Notice who (4.00)
    lobbied for making it illegal. The medical profession has long attempted to co-opt and demonize the role of midwives and traditional herbal medicine. Notice also the lack of interest in the long term health of women being eroded by repeated pregnancy.  I, for one, believe that the ultimate goal of the right to lifers is also the restriction to access to birth control in general.  Yet every indication is that when women have control of reproduction the general well being of society improves. Good for Al Franken for calling Scalia on this.  And a professor of women's issues would certainly be conversant with all the relevant historical circumstances.

    Theocracy is tyranny

    by Druidica on Tue Nov 22, 2005 at 11:40:59 AM PST

    •  Barefoot and pregnant (4.00)
      The AMA has a long history of chauvanism.  Taking away what was once the responsibility of midwives and making it something requiring a man's intervention.  

      Same thing happened to the funeral industry - women used to prepare bodies of their family deceased for burial until it was taken over and regulated into a multi-billion dollar industry.

    •  according to blackmun's biographer (none)
      the thing that really convinced him to legalize abortion was that the AMA wanted it legal. kind of ironic.  

      I am not sure if it was pure male domination that motivated docs to move to criminalize in the first place.  I think it probably had more to do with protecting their turf -- since it looks like midwifes and others were the ones performing them.  

      Talk doesn't cook rice.

      by sophiebrown on Tue Nov 22, 2005 at 12:35:15 PM PST

      [ Parent ]

      •  Doctors were horrified by what they saw. (4.00)
        Talk to physicians to this day who were around in the fifties and they'll tell you heartbreaking tales. Families being left motherless because mom and dad didn't think they could afford another child. Beautiful young girls dying because of illegal abortions. It was a horrible thing.
        •  I think (none)
          there was probably an opinion shift in physicians by the 1950's beyond the historic apathy for the local herb woman. They had won the contest, after all.

          Theocracy is tyranny

          by Druidica on Tue Nov 22, 2005 at 02:30:30 PM PST

          [ Parent ]

          •  That and they were now able to cure (none)
            the infections that set in after botched surgical abortions, so they saw more of these women in the hospitals as well. I also suspect, though I have no documentation on this, that as that twentieth century progressed, there were more and more "coathanger" types of abortion and fewer herbally induced ones.

            So, yes, you're right about that.

    •  Why the Speculation? (4.00)
      I, for one, believe that the ultimate goal of the right to lifers is also the restriction to access to birth control in general.

      You can pick up pamphlets describing birth control as equivalent to abortion at your (or at least some) local Catholic church. I haven't run across a Protestant fundamentalist position on it in my rounds as a wedding musician; I think it's softer, but they're certainly opposed to extramarital sex.

      Birth control was illegal for married couples in Connecticut in the early 60's. So there is definetely an element of birth control prohibition in the RR.

      Note, the Republicans, especially the religious right, themselves do not advocate "policies" in order to achieve "results." They set up rules to control behavior. They haven't the least interest in the results of their policies. It would probably help us to emphasize this to moderates.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Tue Nov 22, 2005 at 01:58:52 PM PST

      [ Parent ]

  •  Even the *Catholic Church* (4.00)
    didn't consider first-trimester abortions to be murder until the 19th century.

    Fun facts....

    •  Odd (none)
      considering that prior to the 19th century, and the advent of chloroform and ether, abortion techniques as we know them would have surely resulted in murder...of the mother.
      •  I read somewhere (4.00)
        That it used to be that pregnancy had a 50% mortality rate.  That sounds rather high to me but what with post partum infections (and doctors who had no idea of antiseptics) women literally took their lives in their hands to carry a child to term and survive.

        I had a friend who trained as a doctor in Ireland.  He attended a woman delivering her 13th child.  He said, with some repulsion, that she looked like a "bag of worms" "down there".  Having a baby is hard on the body.  

        Impregnating your wife without allowing her sufficient time to recover, which generally meant sexual abstinence for the men, was considered akin to attempted murder by many back then.

        Don't forget, ePluribus Media isn't them, it's US. That means you too.

        by Bionic on Tue Nov 22, 2005 at 12:26:34 PM PST

        [ Parent ]

        •  I heard 30% of women (none)
          who bore children would die in childbirth.  Still very high.  

          It's interesting how our vision of the female ideal has changed at the same time that medical technology has made it possible for almost all women to deliver successfully.  We used to value bigger-boned women with "child-bearing hips".  Now we value small hipped women who look like they would have trouble passing a cue ball.

        •  Couldn't Have Been That High Except-- (none)
          when doctors first started giving birth services in hospitals, they had mortality rates that high because they didn't know to wash hands after their daily autopsies.

          The midwives in the same hospitals had much higher survival.

          I think if 50% death was the historic norm there would be no such thing as monogamy. It'd have destroyed the family.

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

          by Gooserock on Tue Nov 22, 2005 at 02:17:32 PM PST

          [ Parent ]

          •  Ironically, monogamy was precisely for that reason (none)
            I can't find citations at the moment (when I do, I'll post) but the current theory as I've heard is it that monogamy was acceptable precisely due to the probability of one of the two partners dying, either  the woman in childbirth or some sort of farming accident, or the man in war or whatever.

            Christian marriage vows quite clearly state "Til death do you part". It was expected that after one died, the other would remarry, and usually it wouldn't take very long (less than a decade was common).

            I'd dare say that it'd also be relatively easy to sort of speed that along, if desired, back in the day where there was no forensic sciences and untimely accidents happened with startling frequency.

            --
            Plot your political compass scores at KosCompass

            by Hatamoto on Tue Nov 22, 2005 at 03:22:11 PM PST

            [ Parent ]

      •  Wrong. Wrong. Wrong. (none)
        Midwives have been safely inducing abortions for centuries. There are plenty of herbs out there that will do the job.
        •  Respectfully (none)
          What are the safety rates for such procedures? Can one assure that necrotic tissue has been fully expelled? There are a host of issues that present problems, and I'd be curious why more herbalists aren't coming forward with their solutions.
          •  I believe Cervitol, (none)
            which is inserted into the cervix to induce contractions, is just an herb.
          •  There are a number of herbs (4.00)
            that will induce an early abortion, but are to varying degrees tough on the woman's body.  If you are asking if it was dangerous (so was carrying to term), then the aswer is definately yes (it also was only effective quite early in the pregnancy) and that is why women have surgical abortions when possible.  It would never be recommended over medical abortions given the choice, and that is precisely why herbalist aren't proposing it as a solution.  It is a choice for women who have no other, that is definately better than improvised surgery, but not preferable to safe legal abortion services.
            •  Ergot alkaloids (none)
              can sometimes do the trick I think. It's a fungus that grows on rye mold and has the distinction of also being the precursor to LSD. But I'm no doc - I don't even play one on TV.
          •  They didn't use procedures as we know them. (4.00)
            They chewed herbs which induced menstruation primarily. To the extent they did surgical abortion, it should be remembered that midwives, who have always scrubbed their hands, were being persecuted as witches in the sixteenth century because of their ability to deliver children via c-section and have the mother survive - something male physicians could not reliable do until the late nineteenth century. Midwives recognized abortion as a procedure necessary to save the young woman's life, and perhaps prevent children from winding up in an orphanage. Physicians saw it as a woman's problem and weren't terribly interested.
            •  "Women's business" (none)
              Physicians saw it as a woman's problem and weren't terribly interested.

              Exactly. And until a couple of hundred years ago, neither were most religious leaders.  

              Since we know that various abortion techniques have existed throughout recorded history, I've long wondered if that might not also explain why there's nothing about abortion in the Bible. Maybe it was just considered to be women's business, and better left alone.

              Too bad the Religious Right aren't such "strict constructionists" when it comes to reading their Bibles.

              Support the Lilith Fund: equal access for the women of Texas

              by moiv on Tue Nov 22, 2005 at 07:48:11 PM PST

              [ Parent ]

      •  "Abortion techniques as we know them" (none)
        That's a narrow definition of the term.  Herbs have been used for eons to do this job.  But then came the FDA and those became in issue as well.

        But if one keeps narrowing the definition until it conforms to preconception (no pun intended, but somehow appropos) then one can justify anything.

        The chips are down. Find your outrage.

        by sj on Tue Nov 22, 2005 at 01:38:48 PM PST

        [ Parent ]

    •  religious aspects of abortion (none)
      I pointed out certain religious contradictions about the "pro-life" position on redstate.org two months or so ago, and (not suprisingly) all the rabid anti-abortion religious fanatics there started to pour abuse and insults at someone else's faith just because it diverged from their current dogmatic interpretation a tiny weeny bit.

      The point you almost never see mentioned by religious people when discussing abortion is that the concept of just or merely "life" is, in fact, meaningless to a Christian in and of itself.

      What matters is the "soul"; the soul is what differentiates human life from any other kind of life.

      For the first 19 centuries of its existence, the Catholic doctrine regarding the soul (what is known as St. Thomas' Doctrine) was that it was created in effect at birth or very near birth.  (You can read all about it in detail on the Catholic Encyclopedia here.)

      It is ONLY in the last century that theologians have suddenly decided that the soul is infused in the embyo at the first moment of its existence. But as I said, such views were not held until the 20th century. The Council of Vienna in the 1300 was most clear on the subject.

      So, during most of their history, Christians believed that the fetus was "alive" but equally believed that it had not been infused with a fully formed soul, until the "quickening" (birth).

      Therefore aborting it was no more a sin than getting rid of a dog or a horse -- as I seem to recall that the Church had also ruled that dogs and horses had rudimentary souls (but I can't find a link to that right now).

      This strange, modern obsession with "life" (which is a soulless continuous chemical process) as opposed to "soul" (our immortal spiritual being) is one of the paradoxes of the Religious Right.

  •  Similarly (4.00)
    the Founding Father's views regarding the use of anti-gravity belts was left for future generations to infer.

  •  I just don't get (4.00)
    ...how these right wingers can so cavalierly ignore the 9th amendment.  They seem to wish it wasn't there.

    "The survival value of intelligence is that it allows us to extinct a bad idea, before the idea extincts us." -- Karl Popper

    by eyeswideopen on Tue Nov 22, 2005 at 12:06:52 PM PST

  •  Related article on strict constructionism (4.00)
    What Bush Wants to Hear

    Shows how conservatives use the phrase "Strict Constructionist" to mean "What I want."

    Example: By twisting the meaning of "Declare," they can say that the president has unlimited war making abilities.  Congress just gets to officially call it a war.

    That is a simplification of the argument - I recommend the article.

    "The room was dark as an honest politician's prospects." -- Dashiell Hammett

    by being released on Tue Nov 22, 2005 at 12:09:32 PM PST

  •  one minor quibble (none)
    It annoys me when someone is attributed with "big brass ones" for initiating a conversation.  This is normal human behaviour.  Saclia isn't going to fix a death ray on you or anything because you decide to chat with him about case law.

    "The state has no place in the bedrooms of the nation." - Pierre Trudeau

    by fishhead on Tue Nov 22, 2005 at 12:21:43 PM PST

    •  May I Ask (4.00)
      Have you ever chatted with Justice Scalia?

      I have done so on several occasions (usually preferring to discuss the University of Chicago Law School, wine and food, and horse racing).  My friends have advised me not to discuss my thoughts about his jurisprudence with Justice Scalia.

      •  I take it back (none)
        It does perhaps strain the bonds of social nicety to get into details of your interlocutor's employment - especially his or her on-the-job judgement.

        "The state has no place in the bedrooms of the nation." - Pierre Trudeau

        by fishhead on Tue Nov 22, 2005 at 01:04:11 PM PST

        [ Parent ]

      •  Thanks for the (none)
        name drop. I'm really glad to know you and Tony discuss the Ponies.

        "They don't think it be like it is, but it do." Oscar Gamble, 1980.

        by Spider Stumbled on Tue Nov 22, 2005 at 03:06:04 PM PST

        [ Parent ]

        •  It's Not Like I Enjoyed It (none)
          Justice Scalia is the law school classmate of a mutual friend.  He taught at the University of Chicago Law school while I attended.  I did think it was interesting that Justice Scalia and, as far as I know, the other justices, do not live in bubbles.  However, I don't think it would be appropriate for a lawyer to discuss Supreme Court jurisprudence with him in a social setting.

          That doesn't mean I like his judicial philosophy.  

    •  Another difference... (none)
      ... is that when you and I initiate a conversation, the global press isn't taking notes.
  •  historically it about the soul (4.00)
    and when it enters the body. Many religion differ on this question. So the morality of abortion is really a sectarian question. Below the Christian belief in early days:

    "In ancient times, the "delayed ensoulment" belief of Aristotle (384-322 BCE) was widely accepted in Pagan Greece and Rome. He taught that a fetus originally has a vegetable soul. This evolves into an animal soul later in gestation. Finally the fetus is "animated" with a human soul. This latter event, called "ensoulment," was believed to occur at 40 days after conception for male fetuses, and 90 days after conception for female fetuses. 1 The difference was of little consequence, because in those days, the gender of a fetus could not be determined visually until about 90 days from conception, and no genetic tests existed to determine gender. Ultrasound devices were millennia in the future. Thus contraception and abortion were not condemned if performed early in gestation. It is only if the abortion is done later in pregnancy that a human soul is destroyed. By coincidence, this 90 day limit happens to be approximately equal to the end of the first trimester, the point at which the US Supreme Court decided that states could begin to restrict a woman's access to abortion. The 40 and 90 day limits also bear a striking resemblance to the 40 and 80 day periods when a woman was considered ritually impure after birth in Judaism (Leviticus 12:2-6).

    The Jewish faith was generally opposed to both infanticide and abortion. An exception occurred if the continuation of a pregnancy posed a risk to the life of the pregnant woman or to her other children. In such cases, the pregnant woman is actually obligated to abort the fetus; the fetus is then considered "radef" -- pursuer."
    http://www.religioustolerance.org/...

    SOCIAL SECURITY: Invented by Democrats yesterday, Protected by Democrats today

    by mollyd on Tue Nov 22, 2005 at 12:27:23 PM PST

    •  Thomas Aquinas... (none)
      believed the soul evolved in the womb.  A vegetative soul from conception to quickening; after that a sensitive (animal) soul, and at birth, finally a human soul was infused when the infant took its first breath.  To determine infanticide in English common law, a piece of fetal lung tissue was tossed into water.  If it floated, the infant had taken its first breath and the death was infanticide.  In ancient Greek, the term "psyche" was originally pronounced "soo" (on inhalation) and "kay" on exhalation.  That's consistent with God breathing a soul (psyche) into Adam.  So the Christian church taught that for about 700 years, but now have backed themselves into a theological corner by insisting that a human soul is infused at conception.  By the way, does anyone know what the spontaneous abortion rate in humans is?  I'm guessing it's about 50%.  What a waste of souls!
      •  50% is about right, CT yanqui (none)
        from MedlinePlus, a pretty good online medical information site:

        It is estimated that up to 50% of all fertilized eggs die and are lost (aborted) spontaneously, usually before the woman knows she is pregnant.

        The same information appears many other places.

        Back in the day what we now just call "abortion" used to be called "medical abortion", "surgical abortion" "elective abortion" or "induced abortion" to differentiate it from spontaneous abortions/miscarriages.  It was once pretty common knowledge, at least among women, that a great many fertilized eggs failed to be born.

        Others have pointed out that even the Roman Catholic church did not define abortion as a mortal sin worthy of excomunication until 1869.

        Maybe they are "lost souls," but if God wanted them all to be born then you'd think the Intelligent Designer would have arranged for way more than 50% of them to make it.

        So I am fond of telling wingnuts that they will never be able to "stop all abortion" or make sure that all fertilized eggs are carried to term without putting God himself on trial/in jail.

        That usually makes their head spin a bit.

        Politics is like driving. To go backward, put it in R. To go forward, put it in D.

        by TrueBlueMajority on Tue Nov 22, 2005 at 02:41:30 PM PST

        [ Parent ]

      •  I believe the current statistic (none)
        is 1 in 3 pregnancies end in miscarriage, but it is impossible to know for sure since so many women never even know that they were pregnant.
  •  Early feminists also wanted abortion made illegal (none)
    because they were concerned about women's lives being lost in the process.

    Maryland was the first state to make it illegal, and as i recall, that happened around 1820. The other states didn't really jump on the bandwagon until the late 19th century, by and large.
    This was something women did and it wasn't any of men's business; nore  were male legislators terribly interested in it.

    We cannot discuss abortion prior to the mid-twentieth century without being aware of the cost that childbirth took on women's lives. There were communities where a third of the women died in childbirth. Huge families left motherless. Abortion was an esssential part of keeping families stable. At the point where unsafe techniques began to be too costly, people rose to stop those from costing lives as well.

  •  Isn't Scalia's 'constructionist' position (none)
    ..that since the founding fathers never anticipated abortion, they did not have a position on the practice -- therefore, the legislature (state or federal) can impose whatever restrictions they want without it being unconstitutional?

    I'm not sure I understand Franken's point if this is ture...

    •  I think the constructionist position (4.00)
      is that, if the founding fathers knew about the practice and did not see fit to protect it, then there can be no argument that it is entitled to constitutional protection.

      I think Franken's point was that, if it was a common practice and wasn't regulated, and in fact if nothing in this "private" relm was subject to regulation, this would support the view that the framers did have an appreciation of a private sphere where the police power did not go.

      Talk doesn't cook rice.

      by sophiebrown on Tue Nov 22, 2005 at 12:46:40 PM PST

      [ Parent ]

    •  The founding fathers... (4.00)
      didn't have to "anticipate" abortion...it was already around.  In fact, abortion has been around since way before the founding fathers.  Maybe it wasn't something they talked about, but they knew it existed, and they clearly did not provide for the restriction of it.  

      "At my signal, unleash hell."

      by JerseyBredFilly on Tue Nov 22, 2005 at 12:50:42 PM PST

      [ Parent ]

      •  Unfortunately (4.00)
        they did not provide for the protection of it ... so the question is left open.  It's still up to interpretation of the constitution, since there is not a specific reference to abortion.  People of course tend to interpret in ways which favor their preferred position, and so the debate rages on.
        •  the point is (none)
          they would not have thought to protect it because it wasn't something which the state had attempted to regulate.

          seems to me that a great deal of the constitution is meant to right the wrongs suffered at the hands of the british, from religious persecution, to the star chamber, to the seizure of property for the crown, and on and on.

          regulating abortion was not part of the history so it wan't something for the framers to react to.

          of course, more likely they would not have reacted to it because it was a right that only belonged to women.

          Isn't that a more fundamental issue?  Why would one expect the framers to deal with rights belonging only to women when women didn't really have the basic rights they recognized.

          Talk doesn't cook rice.

          by sophiebrown on Tue Nov 22, 2005 at 02:58:32 PM PST

          [ Parent ]

          •  Very plausible thinking. (none)
            I'm afraid it doesn't make Franken's point any more likely to persuade Scalia to uphold Roe.

            I just don't agree that Franken's particular argument is very helpful.  Embarrassing Scalia and showing how uninformed he is certainly scores a coup, and may give some conservative just one more reason to reconsider their perspective - that's the value.  Gotta chip away!

    •  asdf (4.00)
      Can we all stop saying "founding fathers"? I know the time of the writing of the Constitution was very sexist, but do we still have to continue that? How about the correct term - "framers of the Constitution"?

      Also, it's not the "framers of the Constitution" that matter, it's those who wrote and passed the 14th amendment in the late 1860s. That is the important amendment in Roe v. Wade. I posted this above, but I'll repost here - the originalist would want to interpret the Constitution as what was the original intention of those who wrote it, or those who amended it. When the 14th amendment was written, abortion was still legal in most states. The amendment did not include the unborn as protected by that amendment. Therefore, the unborn has no right to liberty, no right to life according to an originalist interpretation. Had the framers of the 14th amendment wanted the unborn to be protected by that amendment, they would have included the word "unborn" or "fetus" or something to that effect in the amendment.

    •  indeed, this isn't my area of the law, but... (none)
      I thought the "originalist" position as it relates to Roe v. Wade runs something like:

      (i) The Constitution prevents the federal government from making laws that would impair any individual rights that the Constitution protects.  (Some are protected explicitly, like the right to bear arms, some are implicit, like the right to "liberty".)

      (ii) The 14th amendment extended these limitations to the states, by "incorporating" the Constitution's restrictions on federal power as they relate to, among other things, bearing arms and liberty.

      (iii) Roe holds that to restrict abortion unduly would violate interests protected by the Constitution, like "privacy" and "liberty".

      (iv)  Roe is wrongly decided, because (a) getting an abortion is not a "liberty" interest within the original meaning of the 1783 Constitution (not the 14th Amend!) and (b) there is no "right to privacy" whatsoever in the Constitution anywhere.  Even if you think later generations want a right to privacy or think that the actual words as we use them today clearly imply that a right to privacy exists, all that matters is what the document originally meant when the states ratified it and it became operative as the new fundamental law of the country.

      Now, I disagree with point (iv), but I think the rest of it is pretty standard legal analysis.

      IMHO, bottom line is that Franken does have brass balls, but his point is irrelevant (and Scalia knows it).  Whether a practice was legal or illegal at the time of the founding has nothing to do with an originalist argument that the Constitution doesn't protect it.  

      Put another way:  You could get Scalia himself to swear on a stack of Bibles that women regularly got legal, subsidized, public gynecological care including abortions in Philadelphia in the 1780s, and it wouldn't change his position that the abortions they were getting aren't protected as "privacy" or "liberty" under the Constitution, Roe notwithstanding.

      Loyalty comes from love of good government, not fear of a bad one. Hugo Black.

      by Pondite on Tue Nov 22, 2005 at 08:43:23 PM PST

      [ Parent ]

  •  Al Franken (4.00)
    Is my hero.  It sounds trite, but I'm not kidding.
    •  Yeah, mine too. (4.00)
      He has the ultimate weapon against these puffed up wingnuts...a sharp wit.
    •  Me too (4.00)
      As a Minnesotan (Franken is from St. Louis Park, a Minneapolis suburb), I am sincerely hoping he will run for the senate seat being vacated by Mark Dayton.

      Floor debates in the senate would become much more lively...

      [-7.13, -8.41 http://www.politicalcompass.org/]

      by evilpenguin on Tue Nov 22, 2005 at 01:03:09 PM PST

      [ Parent ]

      •  Al Franken vs. Norm Coleman (4.00)
        Franken has made it pretty clear he's not running for Dayton's seat next year, but he seems to be seriously contemplating moving back to Minnesota in the next year or so to take on Norm Coleman in the 2008 race.  He truly despises Norm Coleman, as do most clear-thinking people.
        •  You're ALL right! (none)
          Yes, I'd have to agree with the rest of you. Al replacing Norm (the turncoat) Coleman (heck, he was a DINO anyways) would be MUCH better.

          I'm still nervous about a Klobuchar/Kennedy matchup in '06, though...  Mark Kennedy is (IMHO) even worse than Coleman...

          [-7.13, -8.41 http://www.politicalcompass.org/]

          by evilpenguin on Tue Nov 22, 2005 at 03:40:52 PM PST

          [ Parent ]

      •  As I Understand It (none)
        Talk has been that Al Franken might be considering a run in 2008 to challenge Norm Coleman for Paul Wellstone's seat.  That would be a much more satisfying win, in my mind, than Mark Dayton's seat.  By the way, I'm in the midst of Al's new book right now--"Truth, with jokes."  I recommend it.  
    •  Al needs his Katherine (4.00)
      Franken's show is the crown jewel of Air America Radio.  

      Some of the others are downright embarrassing. AAR and the country don't need shows that sound like Rush Left and Hannity Left.  The whole trash-talk genre is distinctively Rightist in its essence.  People who love Rush and Hannity never change sides -- not unless they outgrow the whole simplistic, rage-against-the-opposition mindset.  So if they DO change sides, it isn't to listen to Mike Malloy or Randi Rhodes.  It's to listen to Franken or Springer-On-The-Radio or NPR.  (Sometimes Ceder and Garofalo almost live up to Franken and Springer.)  The shows that mirror Rush and Hannity will die almost overnight at the same time as the Rush and Hannity shows themselves do.  It's a night that isn't far off, either.

      But AAR needs to get Franken a good replacement for Katherine Lanpher.  His show was funnier with her, warmer with her, less like a guys' locker room with her.  And she was the only female voice on AAR that connects with the soccer moms whose votes we must change to take back the Congress.  I'm not kidding.  The only one.  (Well, Malloy's wife Kathy could probably do it, but Malloy's time and format don't give her room to do so and a pairing with Franken would be impossible for logistical and other reasons..)

      Get a clue, AAR.  I like Janeane and Rachel on their good days.  But they don't reach suburban white-collar audiences very well, most especially not those who most need enlightenment.  And Randi, well...  A lot of us on the same "side" with her still can't listen to her.  Frankly, I'd rather listen to Rush, even if I can only stomach him for an hour or two a month.

      You can't tell me that all our women on the Left sound like militant lesbian union organizers, but AAR seems to be playing eagerly to that stereotype.

      Katherine and Al had a great thing going.  Today his issues are just as right, his guests are just as good, his observations are just as right, but the show just feels a little downmarket from where it was before.  Since he's moving the show to Minnesota, they should find him someone who talks like Marge Gunderson (Frances McDormand) in Fargo, but deliberately so.  Al is so earnest that he really needs the kind of repartee that Katherine had going with him.

      If AAR doesn't fix that, Franken's ratings are going to go down.  It's obvious.  And all these snickering remarks from the studio boys in recent weeks' broadcasts, complete with the bare-closet acoustic ambience in which we hear them, are making his show sound like some kind of local community college production.

      Al has lost a vital piece of his show's success to date in Katherine, and AAR had better figure out how to fix that.  They can't afford to let their flagship take on this much water.

      •  Mike Malloy (none)
        Is the best thing on AAR.  Al Franken is too wishy-washy.
      •  Right on the Mark (none)
        I love Al, but Katherine made a perfect foil, and she had a great laugh.  Al is better when he has someone to play off of.  That said, I hope he runs against Coleman and beats him.  Think about it.  Senator Al Franken.  That would put some Republican panties into a Frist.  

        And you are right about Randi Rhodes.  I turned her off this afternoon after the 15th "you know". She should learn how to carry off a rant without repeating herself, saying "you know" after every sentence, or trailing off into cyberspace.

  •  Every time I see an abortion discussion, (2.66)
    I wonder why the male is absent from the discussion.  Why aren't we talking about ways to make the male keep his penis in his pants so this problem will be reduced.  For example, we could punish him with castration if he gets a woman pregnant.  Things would change in a hurry.  
  •  i too heard this....and yes it was great (4.00)
    I don't post often but I am a devout Christian Liberal and I believe that Jesus was the ultimate liberal. I also don't believe that abortion has anything to do with being a christian. Abortion is no where in the Bible..not one story, not one mention, nothing, nada. So, I am still at a lost as to Scalia et. al. and their postion on aboriton.

    Abortion has nothing to do with being a strict constructionist as the professor from Princeton (on Al Franken's show )clearly pointed out.It clearly was not an issue the founding fathers considered and there was no legislation on abortion until the 1850's.

    •  Bible & Abortion (4.00)
      The reason abortion is not mentioned in the Bible is because they didn't see any need to, the fetus had no moral standing. Throughout the Bible, life is equated with breath (i.e. God breathed life into Adam; the "breath of life"; etc.)

      If life is equated with breath, the early Jews and Christians would have had no problem with abortion up to and including birth...just as long as the baby hasn't inhaled and let out that well-known cry yet.

      "Murrow had a child. The damn thing went wild." -- Fleetwood Mac
      (-8.63), (-7.03)

      by Perdition on Tue Nov 22, 2005 at 02:52:15 PM PST

      [ Parent ]

  •  The best abortion history book... (4.00)
    Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (Galaxy Books) (Paperback)
    by James Mohr

    http://www.amazon.com/...

    Some points of note:

    1.  Abortion wasn't always illegal because in the 1800's nobody could successfully predict or diagnose pregnancy until the 16th week or "quickening".  Therefore, any interruption of pregnancy was merely to "bring on the menses" and not abort a pregnancy.  Therefore nurses, midwives, etc. often performed procedures to start the period.  In law, before quickening, there was no proof that a pregnancy was involved.

    2.  The AMA's two main reasons for being behind the early abortion laws were (1)  Abortion was more dangerous than childbirth and (2) They wanted to put these independent nurses and midwives out of business.  This was about the same time that medical schools were being started in the USA, and they needed a marketing advantage over lay practitioners who had been delivering medicine for centuries.

    3.  One of the reasons abortion was more dangerous than childbirth was because of infection.  When antibiotics came into vogue in the mid-1900's, then the reverse became true.  Abortion became less dangerous than childbirth.

    4.  With that directive, the AMA reversed itself in the mid century to work to make abortion legal, leading up to the legalization in California and New York in the late 60's and Roe v. Wade in 1973.

    Now, it's all politicized and religiousized...things that never had an impact in the early days of the Constitutional Convention.

    HotFlashReport - Opinionated liberal views of the wrongs of the right

    by annrose on Tue Nov 22, 2005 at 01:03:34 PM PST

  •  What's disturbing... (4.00)
    is that a talk-radio host and former comedy writer knows more about the legal historty of US abortion law, than a Supreme Court Justice.
    •  What's More Disturbing is the Pattern (none)
      of quality of leaders our system has been selecting for these sorts of positions over the past half century.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Tue Nov 22, 2005 at 02:04:10 PM PST

      [ Parent ]

    •  What's Disturbing (none)
      What is even more disturbing is that we have kids in kindergarten who have more knowledge, intellectual curiosity, and commonsense than our current president and a greater sense of ethics than our current vice president!
  •  hate to pour cold water on this, but... (4.00)
    While interesting, I don't think the fact that abortions existed in the 18th and 19th centuries is extremely relevant or helpful to progressives.

    Franken doesn't have Scalia dead to rights or anything. Just because abortion wasn't regulated then doesn't mean that it couldn't have been.

    In fact, this particularly fact may be bad for those who like Roe. The most effective and most common argument for progressives on abortion is that the framers couldn't have written every liberty into the constitution because they were unable to foresee every possible violation of our liberties. Abortion, according to this argument, is protected by the Constitition but not mentioned because the framers were not aware that it would become a common practice.

    I want a Constitutional amendment regarding privacy in general.

    •  asdf (none)
      It is relevant! Anyone who claims to prefer to interpret the Constitution and amendments as they were originally intended loses an anti-abortion argument. Abortion was legal in most states at the time of the 14th amendment. Political movements to ban the procedure were already stirring, so it wasn't like it wasn't a known thing. Those who passed the 14th amendment did not include protection for the unborn, hence the unborn has no right to constitutional protection, according to a literal originalist interpretation of the 14th amendment. Had the framers of the 14th amendment wanted to include the unborn, they would have, and they knew about abortion so obviously they did not intend to protect them and an originalist should not insist on protecting the unborn now.

      But you are right, we need a Constitutional amendment regarding privacy in general.

    •  no, (none)
      the argument is that the framers weren't aware the state would attempt to regulate this very common private practice, becuae it was not subject to regulation at the time of the constitution.

      Talk doesn't cook rice.

      by sophiebrown on Tue Nov 22, 2005 at 03:03:28 PM PST

      [ Parent ]

  •  Franken shoots...and scores...again!!! (none)
  •  I'm so fricking tired of these assholes (none)
    in our Supreme Court...especially Scalia and Thomas.  I've had it with these f*ckers...

    As much as I appreciate Air America and Al Franken, these "intellectual discourse" over a bunch of AM stations is not going to get the job done.

    It's time for us to intervene and bring them down at least in the minds of the public.  But how?  Easy.  Just start spreading false rumors about their families.  Smear the fuck out of them.  They've screwed with our civil liberties for long enough.  So now, Scalia & Thomas' families are a fair game.  Together, one by one, we can all make a difference.

    I know this isn't taking a higher ground, but fuck it.  They have it coming.

    Here's a start:  "Hey, I heard Scalia is a cross-dresser.  And I heard Thomas has Heidi Fleiss' digits on his speed dial.  Oh, by the way, did I tell you that Scalia's wife had an abortion in her 30s?  Shhh...don't talk so openly about Thomas' gay son.  It's supposed to be a secret.  Gotta go.  I've already said enough."

    •  And Roberts, too... (none)
      Yeah, Roberts was supposed to be some sort of super-genius. Turns out he's more a Wile E Coyote "Supra-Genius" than the real article.

      But of course: that shouldn't surprise anyone.

      The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

      by Shapeshifter on Tue Nov 22, 2005 at 02:05:53 PM PST

      [ Parent ]

    •  no, I don't think so.. (4.00)
      That's just not the way we do business. I know I'll probably get flamed for this(like I could give a fuck), but I'm not willing to become my ememy in order to defeat him. We'll win, in the end, because we're in the right. Smearing people with lies doesn't figure into it.

      Beside, telling the truth 'about them is damaging enough :-)

      *resist the urge to be popular

      by coolhappyMax on Tue Nov 22, 2005 at 02:08:42 PM PST

      [ Parent ]

  •  So if everything that was legal on June 21, 1788 (4.00)
    should still be legal, according to a strict construtionist, that means marijuana should also still be legal. It was only banned in the 1930s as a transparently racist attack against jazz musicians.

    Yahoo!

    •  Heroin! (none)
      Makes a great painkiller!

      So does mercury!

      The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

      by Shapeshifter on Tue Nov 22, 2005 at 02:04:24 PM PST

      [ Parent ]

    •  That's not at all how it is set up (none)
      The Constitution sets rules which apply to all the states.  Things left out of the Constitution are intended to be left up to the states.

      If you argue that making marijuana illegal should not be a FEDERAL law based on strict construction, you may make some sense, but state prohibitions are another matter entirely.

      The question is muddied because abortion is not explicitly mentioned, so that it's protection or lack thereof is a matter of interpreting what IS explicitly written.

      •  You state in a less provocative... (none)
        ...more careful way what I was trying to get at. Yelling "yahoo, abortion used to be legal so it should never have been and can never be banned," is something of a flakey argument (falls apart easily). So the momentous implications of Franken getting Scalia's goat really aren't there.

        I do believe the privacy argument is the best one for protecting a woman's right to choose. I do believe privacy is plainly granted by the constitution. We've got it in the 1st, 3rd, 4th, 5th, 9th, 10th, (hell the 21st) amendments, not to mention the spirit of the Declaration of Independence. Yes, the DOI is not law, but it unarguably defines the spirit of the land and should unarguably be the spirit by which the constitution should be interpereted.

        That said, I'm all for a privacy amendment to make it abundantly clear to those too dim to see it.

        •  Agreed, (none)
          peace, amen, indeed, fuckin-A, [yes].

          Let's make it so clear even Thomas and Scalia can't get it wrong through the most twisted lens.

          I'm liking this privacy amendment!

        •  asdf (4.00)
          Here's how Franken got Scalia's goat. He proved that Scalia HASN'T READ THE ACTUAL ROE v. WADE OPINION!

          The decision itself, which anyone can read, describes the history of abortion in law and religion. If Scalia didn't know that abortion was legal at the time of the framing of the Constitution and still legal in most states at the time of the 14th amendment, then he didn't read the decision!

  •  Thanks for a great diary (none)
    Three cheers for Al!!  And three for you for getting the info out!!  

    I would not have thought of that in 50 years. What fun it is to know that little fact.

    You made my day!!

    I love Al too.  I just got the CD and I'm listening to his new book. He reads it himself and, with his inflections, it's much better than just reading the book.

  •  if you need a party (none)
    Dec 15th is the 214th anniversary of the ratification of the Bill of Rights.
  •  Interesting that Franken confronted him... (4.00)
    but as for the history of abortion in the U.S., yeah abortion was not illegal until the late 19th century and from what I learned in a college women's health class basically the AMA (or other original doctor's groups) who were almost exclusively male, were getting concerned about the popularity of mid-wives (who were almost exclusively female) birthing babies and teaching women about mentrual extraction (a way to perform a kind of self- induced abortion) and other herb related or "nature" related contraceptive techniques. The doctors groups succesfully lobbied to make abortion illegal because they felt that mid-wives were encroaching too much on their territory (the practice of medicine) and they wanted to maintain "control" of patients and procedures. So, the illegality of abortion originally had little to due with the concern for the fetus or the mother, but was mostly political for other reasons. Anyone else recall similar historical perscpectives on this?

    The primary difference between intelligence and stupidity is that there are limits to intelligence.

    by Realbluegrrl on Tue Nov 22, 2005 at 01:49:47 PM PST

  •  Once again... (none)
    I am amazed anyone thinks Scalia--or his ridiculous, so-called "Judicial Philosophy"--merits any consideration in terms of legitimate philosophical or legal debate.

    In terms of his ability to dress up Republican positions in fancy, impressive-sounding language... well, there he's effective. I wouldn't say good so much, more like he has an audience completely willing to be repeatedly decieved. But effective.

    But his legal views, and the legal views of others following his legal views and pretending they're somehow the holy Platonic ideal are full of shit.

    He ain't bright, he's a liar, and the only reason he gets away with it is because America has given him a job for which nobody can really call him out on it.

    He--his ninth amendment denial and all--is a joke and the sooner we stop treating this sort of infantile approach to constitutional law as legitimate or even respectable the better.

    The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

    by Shapeshifter on Tue Nov 22, 2005 at 02:02:57 PM PST

  •  the liberal delusion (none)
    The idea that facts matter to conservatives.

    That's it, in a nutshell.  If we just point out in sufficiently exruciating detail just how wrong they are on the facts, they'll come around.

    That's what separates the reality-based community from the self-styled conservatives.  they're not interested in facts.

    "The American people want someone to articulate their rage for them"
    -Diana (Faye Dunaway), in "Network"

    by Leggy Starlitz on Tue Nov 22, 2005 at 02:15:59 PM PST

    •  I have found, to my dismay, that (none)
      you are quite right. It is rare that when one presents indisputable facts that they change the mind of the typical conservative. I actually have a conservative friend that wrote to me how angry he was that his Indian colleauge was stopped at the airport where they were both traveling, and yet he thinks that racial profiling is acceptable.

      And yet, many Americans now believe that they were misled to support the invasion of Iraq.

    •  Who needs facts (none)
      when you've got faith?
  •  ONce again (none)
    The RADICAL RIGHT is shown to be ignominiously ignorant.

    The righteousness of the RR is founded upon lies.

  •  asdf (none)
    I am proud to be a lowly student in my final year of Prof. Stansell's department.  Yay Princeton History.
  •  Constructionist, Originalist (none)
    Can someone please help me understand what it means to be a constructionist or originalist, except that it means you want to take America back in time 200 years? What are the judicial or legal pragmatisms of these assertions of character?

    Law school is next year...

    •  Strict Constructionist (none)
      Found this...

         * Some argue that the term is vague and difficult to apply. Noting that it largely came into prominence as part of Richard Nixon's presidential campaign, they point to a memo written to Nixon in which the term is explained:

          A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs--the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution. (William H. Rehnquist in a memo to Richard Nixon about Supreme Court nominees)

      How disappointing. At least it now has a name...

    •  asdf (none)
      It's easier to show an example than define a constructionist or originalist. Consider the Roper v. Simmons case from the last SCOTUS term (spring 2005). In that decision (Justice Kennedy who wrote it and the dissenters were Scalia, Thomas, Rehnquist and O'Connor) the majority banned the juvenile death penalty based on society's "evolving standards of decency" with regard to what is cruel and unusual punishment.

      Here is the first part of Scalia's dissent (joined by Rehnquist and Thomas, O'Connor wrote her own dissent):

      In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

      The bolded parts, I think, display an originalist or strict constructionist philosphy - interpret the Constitution literally with only the legislature being able to determine things like "evolving standards of decency".

      The thing is, Scalia only uses this judicial philosophy when he feels like it. He doesn't always use it. He decides the case the way he wants based on his own personal ideology.

      •  Kinda Like Gore vs. Bush, huh? (none)
        "Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent."

        So the subjective decison of five justices, who specifically declared the decision non-precedental in Gore Vs. Bush was just fine, but this decsion was all wrong.  Tells you all you need to know about Scalia.

  •  Scalia, strict constructionist (none)
    He strictly follows not the constitution, but the rules of Opus Dei.

    Check out my lte archive at http://www.livejournal.com/users/tomletters and feel free to use my ideas for your own lte's.

    by DemDachshund on Tue Nov 22, 2005 at 03:12:09 PM PST

  •  Scalia takes it like a man (none)
    Well, all props to Al, but who can forget that plucky NYU law student who, after Scalia's sodomy tantrum in the Lawrence case, used a Q&A session to ask Scalia whether he'd ever sodomized his wife.  see here.  Maybe the better question would have been whether Scalia's wife had ever sodomized him.  Those NYU guys . . . sigh.  
  •  just because abortion was legal (none)
    is not an argument that the constitution prohibits regulation thereof.  It actually bolsters the argument that the regulation of medical practice (abortion included) is and has always been the province of the elective bodies.
    •  On edit: elected not elective (none)
      n/t
    •  Regulation vs Abolition (none)
      It should be regulated.
      To be safe
      To be available
      To be confidential

      Just like other medical practices.

      •  ideally yes (none)
        But the point is regulation up to and including abolition/prohibition are and have always been within the legislature's purview.
        •  asdf (none)
          What hasn't been in the legislature's purview is dictating to someone that they must give their body to another. The government cannot demand someone donate an organ, not even a parent to a child. The government cannot demand someone donate blood, not even a parent to a child. Not even to save a life! Yet those who want a government proscription of abortion are demanding that the government dictate to pregnant women that they will give their body to another. The legislature cannot force people to undergo a health risk, that is definately not in their purview and so abortion prohibition is not in their purview.
          •  look at it from a different persepctive (none)
            Legislature may prevent you from doing certain things with your body (e.g., injecting it with drugs or selling your organs or body wholesale).  So too can they prevent you from subjecting your body to a specific medical procedure (e.g., no silicone breast implants).  So, it is irrelevant that by prohibiting abx your body is being used as a host.  It is not what you must do with your body.  It's what you can't do.
            •  asdf (none)
              But the government cannot force you to undergo a health risk. The government cannot force donations of organs, not even blood.
              •  Sure the governmen can force (none)
                you to undergo a health risk.  Have you ever heard of the draft?
                •  asdf (none)
                  Yes, I've heard of the draft. And in this conversation the draft is a red herring.
                  •  I am just pointing out (none)
                    that the government can subject you to a whole host of things.

                    But to get back on topic, it is not the government who subjects a woman to health risks associated with pregnancy.  It's not like the government impregnated her.  The government merely proscribes a given treatment.  Now, the unavailability of that treatment may increase health risks, but that is true with any regulation of medicine.

              •  And from yet another perspective (none)
                Well, to take the Doc's analogy a bit further, and leaving the fetus aside, let's assume that a state legislature is occupied by a majority that believes that, oh, bone marrow transplants are . . . well, voodoo gimmickry.  The modern day equivalent of bloodletting and leeches.  So they ban them.  Bad news for leukemia patients, but what the hey.  Within the purview of the state legislature to regulate/prohibit medical procedures.  

                Now let's assume that the legislature thinks that there aren't enough kids around to tend the fields.  So they pass a law that any girl/woman mature enough to get pregnant, and who does, cannot undergo an abortion procedure because, well, the state has an interest in field tending.  Within the purview of the state legislature.  

                Let's then say that the fields are getting worse and folks aren't fornicating, so there's no crop of field workers coming up.  If the legislature of State X has the power to regulate and/or prohibit the termination of a pregnancy due to its state interest, not a great stretch for the state to flip the coin and say that due to the state's interest, well, . . . you're not married, we need kids, we've got sperm donors, so . . . .

                Bodily autonomy is bodily autonomy.  If the state has the power to prevent a woman from terminating a pregnancy altogether, it is no big stretch for the state to argue that it has the power to take over her reproductive organs to do, well, whatever the boobs in State X legislature can dream up.  This was the point of Justice O'Connor's first question at oral argument in Casey.  To play off of one of the Doc's examples, we ain't talking silicone breast implants here (a particularly chauvinistic example, I might add).    

                Can't help but think of what my dad (a country doc) had to say about abortion:  "No goddamn man should have one goddamn thing to say about this."  link.  Give it a rest, Doc.  Enjoy practicing patent law and leave practicing medicine to others.  

  •  On edit: elected not elective (none)
    n/t
  •  I love Al (none)
    I mean I adore him. I hope he runs for the senate. Can you imagine Al Franken as a Senator? I would never turn off C-span and I'd move to Minnesota. I look forward to 12-3 pm every weekday.

    What do you want?

    Patience!

    When do you want it?

    Now!!!

    What do you want?

    Patience!

    When do you want it?

    Now!!!

    Patience! Now! Patience! Now! Patience! Now!

    FOFL!

    And his book "Truth with Jokes" is classic, a must read.

  •  i think... (4.00)
    that most people think liberal humorists graduated from clown school or something.

    of course he was right... franken is a harvard grad, and i think he still employs a team of harvard students as his fact-finders. you have to be reasonably intelligent (or extremely rich, and i don't think franken was) to get in, regardless of what you do with the education when you're done with it.

    but i agree, i've been following franken since his book about rush and i like him a million times more than michael moore.

  •  Doctor-performed abortions were legal (none)
    in the 1907 to 1917 time frame.  My grandmother got pregnant four times.  Three times the baby was too large for her to deliver.  In each case, the doctor cut up the baby to deliver it.  My father was her third child, and the smallest, so she was able to deliver him.

    Doctors had a special set of tools in their bags for just this purpose.  Caesareans were viewed as way too risky.

    In fact, I wouldn't be alive if late term abortion were illegal in 1910, because my grandmother would have died delivering her first child.

    In fact, this procedure was still used in the 1940's when my mother in law was having her children.

  •  Mistake (none)
    The original statement on this thread is mistaken.  From www.abortionfacts.com

    "The colonies inherited English Common Law and largely operated under it until well into the 19th century. English Common Law forbade abortion. Abortion prior to quickening was a misdemeanor. Abortion after quickening (feeling life) was a felony. This bifid punishment, inherited from earlier ecclesiastic law, stemmed from earlier "knowledge" regarding human reproduction."

    •  Sadly for you, no. (4.00)
      http://www.cbctrust.com/...
      Historically, religious beliefs coloured legal opinion on abortion. From 1307 to 1803, abortion before the fetus moved perceptibly or "quickened" was not punished under English common law, and not regarded by society at large as a moral problem.9 Because most abortions took place before quickening, punishment was rare.10 Even if performed after quickening, the offense was usually considered a misdemeanour.2 This was the case until the nineteenth century; the entry of the state into the regulation of abortion has been relatively recent.11

      Two prominent legal cases from fourteenth century England illustrate prevailing practices at that time. In both the "Twinslayer's Case" of 1327 and the "Abortionist's Case" of 1348, the judges refused to make causing the death of a fetus a legal offence. The judges were, in this pre-Reformation period, all Roman Catholic.

      In 1670, the question of whether or not abortion was murder came before the English judge, Sir Matthew Hale. Hale decided that if a woman died as a result of an abortion then the abortionist was guilty of murder. No mention was made of the fetus.12

      This tolerant common-law approach ended in 1803 when a criminal abortion law was codified by Lord Ellenborough. The abortion of a "quick" fetus became a capital offence, while abortions performed prior to quickening incurred lesser penalties. An article in the 1832 London Legal Examiner justified the new laws on the grounds of protecting women from the dangerous abortion techniques which were popular at the time:

          "The reason assigned for the punishment of abortion is not that thereby an embryo human being is destroyed, but that it rarely or ever can be effected with drugs without sacrifice of the mother's life."12

      1803. Huh. That would be after the Constitution was written in 1787.  So much for that "original intent" argument as well as the "Framers' couldn't have known" argument.

      Or, if you prefer something less Canadian in outlook, (eh?), here's this from Georgetown's Law School website:

      Under English common law, abortion was a misdemeanor only after quickening. The first abortion statute, enacted in 1803, made procuring an abortion after quickening a capital felony. Before quickening, procuring an abortion was a lesser felony that could be defended by proving the woman was not pregnant. The Lansdowne Act of 1828 was very similar but extended criminality to abortions by instruments. The 1837 Offenses Against the Person Act removed the pregnancy requirement and quickening distinction from the law. Scottish law held abortion to be an indictable offense only if the woman was pregnant. The 1810 French Penal Code outlawed abortion on pregnant women, as did Livingston's proposed Louisiana Code, which also contained an exception to save the woman's life. Both of those codes influenced Macaulay's draft of the Indian Penal Code.

      Then, of course, there's the opinion itself, as several other posters have referred to. In part, it reads:

      The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child." 29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. 30 In 1828, New York enacted legislation 31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it "shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose." By 1840, when Texas had received the common law, 32 only eight American States had statutes dealing with abortion. 33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

      Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. 34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health. 35 Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts. 36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3, 37 set forth as Appendix B to the opinion in Doe v. Bolton, post, p. 205.

      It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

      All emphasis added.

      but thank you for playing along at home. Next time dive a little further into Google past the anti-choice propaganda.

      A patriot must always be ready to defend his country against his government. - Edward Abbey

      WAtR

      by boadicea on Tue Nov 22, 2005 at 11:11:09 PM PST

      [ Parent ]

  •  Let's not forget the anti-catholic panic (none)
    which served as an important motivator in passing these new laws.

    At the time of the Civil War abortion was fairly widespread.

    Protestent women were extolled to bear children least the nation be overrun with Papists - It had nothing to do with protecting "life" it was part of the panic of ebing out numbered by such obviously inferior racial stock as, say, the Irish, or, in the case of Justice Scalia, the Italians.

    Pity Al wasn;t able to share that with him as well, though I mist admit I'm fairly shocked the Justice would just pretend ignorence on these issues.

    "the fools, the fools, they've left us our Fenian Dead" (Padraig Pearse - Gay Revolutionary)

    by padraig pearse on Wed Nov 23, 2005 at 01:53:10 AM PST

  •  Bible (none)
    In Biblical times, infanticide was good enough. Who needs new-fangled hospitals?
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