Sunday, January 13, 2008

Celebrating Roe?

An editorial in today's The Tennessean begins by celebrating the 35 year old Roe v. Wade decision as "one of the most important decisions by the United States Supreme Court in affirming women's rights." That statement is correct in the same sense that one might have once said that the Dred Scott case was one of the most important affirming the rights of landowners.

Be that as it may, the newspaper proceeds to make a factually incorrect statement, claiming that in Roe v. Wade "the court ruled on women's 14th Amendment right to privacy." That claim might seem puzzling to one who actually reads the 14th Amendment, searching and searching, but never quite finding, language affirming a general right to privacy. That distraught researcher might be temporarily relieved to learn that the Court did not rule on any such thing at all.

In fact, not finding the desired right to privacy in any actual provision in the Constitution, the Court mentioned a whole bunch of Amendments -- the First, Fifth, Ninth, Fourteenth, and the Bill of Rights generally -- though they never really bothered to identify the right in any particular provisions of those amendments. Perhaps they hoped the reader would be overwhelmed by the volume and give up looking. Nevertheless, just in case a researcher managed to sort through all of those amendments, the Court added that this elusive right to privacy could be located in the "penumbras" of the Fourteenth Amendment. Well, that settles it. Since penumbras are not written, but are just sort of hanging invisibly in the air surrounding the Fourteenth Amendment, we are compelled to simply take the Court's word for it and go home.

Whatever one's opinion about a mother's right to choose to abort her child, it is difficult when reading Roe to avoid the thought that the opinion was a conclusion on a desperate quest for a rationale. Not only is the decision sloppy from the standpoint of legal reasoning, but it is also a rhetorical travesty. After all, the Court repeatedly referred to the person bearing the fetus as a "mother." In some cases, that language repeats language from state laws it is overturning, but frequently that is not the case.

Now, one cannot be a mother without a child. So, what exactly is it that the "mother" is bearing inside her body?

8 Comments:

Anonymous H.B. Keats said...

The "penumbra" reference did not come out of thin air, its part of case law. (Griswold v. Connecticut), as is the reference to the right of privacy. There is nothing "elusive" about it.

Not only is the decision sloppy from the standpoint of legal reasoning, but it is also a rhetorical travesty.

Really, why don't you cite some examples and and offer your reasoning?

After all, the Court repeatedly referred to the person bearing the fetus as a "mother."

That's you're example? Are you expecting common sense to go on a permanent vacation in order for trivial bickering over semantics to be the pillar on which the argument that overturns RvW hinges?

9:19 PM  
Blogger MCO said...

I am quite aware that the Court discovered these alleged penumbras in the Griswold decision, and that in Roe it merely exploited them. The fact that a previous court had made them up, in that instance to strike down an old law that was not even remotely controversial or, for that matter, actually enforced in Connecticut(I trust you know the history behind the Griswold case), does not reduce their elusiveness. In fact, resorting to that sort of argument is on its face discreditable. A court that wants to resort to penumbras really frees itself to rule in whatever way it wants to on any issue. They essentially deny the rule of law.

6:42 AM  
Anonymous H.B. Keats said...

It was not unreasonable, even if incorrect, to infer that you were referring solely to RvW in your post.

The fact that “penumbras” are part of case law means that by definition they are not elusive relative to the subject of your post.

While you may disagree with the opinion, in no way have you provided evidence that RvW contravenes the rule of law.

Where in the Constitution is the issue of reproductive rights addressed?

6:57 PM  
Blogger MCO said...

With all due respect, the argument that the appearance of a concept in a previous case legitimizes it with regard to any future use is simply not correct and shows a fundamental misunderstanding of the legal principle of stare decisis.

My assertion that Roe was poor jurisprudence is not really all that controversial among legal scholars. You will find wide agreement on that point even among those who applaud Roe's result.

9:41 AM  
Anonymous H. B. Keats said...

With all due respect, the argument that the appearance of a concept in a previous case legitimizes it with regard to any future use is simply not correct and shows a fundamental misunderstanding of the legal principle of stare decisis.

Whether or not the “concept” i.e., penumbras is “legitimate” is not of the essence. The point is that in “Griswold” the court held that privacy, specifically with regards to reproductive rights, could be counted as an unennumerated right.

Even if one finds that the concept of “penumbras” is not legitamate, that does not constitute evidence that the “Roe” court was out of line in citing “Griswold” as a precedent.

The term “poor jurisprudence” is not synomous with “denying the rule of law”. “Poor jurispridence” would indicate that a mistake was made. “Denying the rule of law” connotates a willful abdication of responsibility. Being that there is no specific reference to reproductive rights in the Constitution, the claims of “judicial activism” do not resonate in this case.
It is possible for reasonable people to draw different conclusions from the available evidence. That’s why it’s called “an opinion.” I am aware there is a lot of sympathy for the dissenting opinion in “Roe” among legal scholars. That does not mean they are necessarily right.

Frankly, for a legal scholar to assert that “Roe” was “poor jurisprudence” yet “applaud its result” is anti-professional, IMO.

12:58 PM  
Blogger MCO said...

While I somewhat regret that continuing to respond creates the illusion that this is a serious argument, I will do so one more time. If you wish, you may have the last word.

It is rather odd to argue that the legitimacy of the argument made in the cited precedent is irrelevant. If the legitimacy is rightly questioned, then reliance on the precedent becomes illegitimate. Second, a court decision is called an "opinion," but your argument in that regard confuses the popular use of that term with the legal one. Third, poor jurisprudence devolves into the loss of the rule of law when the prerogatives of democratically elected majorities in legislatures are swept aside by an oligarchy of nine creating constitutional arguments out of thin air in order to justify their personal whims. That is the very quintessence of the rule of men and not of laws. Finally, it is not unusual to oppose the means to an end, even if one is in agreement with the end itself. That someone might be glad that Roe made abortion legal nationally even while disagreeing with Roe's logic might make them wrong with regard to the legality of abortion, in my view. I do not share your view that it makes them "anti-professional."

2:25 PM  
Anonymous H. B. Keats said...

While I somewhat regret that continuing to respond creates the illusion that this is a serious argument, I will do so one more time. If you wish, you may have the last word

A convienvent way to bow out of an argument that you are losing.

It is rather odd to argue that the legitimacy of the argument made in the cited precedent is irrelevant.

That’s not what I said. I said that citing the precedent can not be impugned as poor jurisprudence simply because one disagrees with the precedent.

Second, a court decision is called an "opinion," but your argument in that regard confuses the popular use of that term with the legal one.

So you say, but apparantly 7 out of 9 Supreme court justices disagreed with your “opinion”. Did they misunderstand the definition as well?

…creating constitutional arguments out of thin air in order to justify their personal whims.

The point is you have presented no evidence that the ‘Roe’ court was guilty of that.

2:51 PM  
Anonymous H. B. Keats said...

And by precedent I mean that privacy rights with regards to reproductive considerations exist, a conclusion that does not necessarily rely solely on the existence of so-called ‘penumbras’, per se.

12:00 PM  

Post a Comment

Links to this post:

Create a Link

<< Home