I wanted to post on what I see as a couple of divisive issues between the right and the left, and how the Whigs position themselves in relation. Let me reiterate that I do not speak for the Whigs, I am merely using their national Modern Whig Party website to view their issues. One of the items I will talk about is called out in their issues, but the other is not. As we are a moderate party, we look to attract moderates from both parties. These divisive issues could exclude potential members from one or the other party. The worse situation is if we choose in line with the Democratic principle on one issue and choose in line with the Republican principle on the other issue, and then we are left with no new members as each says, oh no I can't join because of X or Y.
First, the issue is abortion. It seems that there are only 2 positions one can have on abortion, pro-life or pro-choice. Although this post is not about my personal positions, I am pro-choice. The current law of the land is pro-choice. I think the Whig position is ultimately the right position, which is that each state should decide on abortion. This is a standard position for the whigs, to get the state involved. There are a few problems with this position, however.
There is the fact that to get the states to decide on abortion, we would need a Constitutional Amendment to send the issue to the states. A Constitutional Amendment requires 2/3 of the Congress to send it to the states. Another possibility is if 2/3 of the states demand it, then it will go to the states. Once it goes to the states, 3/4 of the states are needed to ratify it. This is a tall order.
Another problem with the Whig position, for pro-choicers, is that since the law of the land is pro-choice, liberals will be potentially giving up their rights to move the decision to the states. In reality, because the first issue is such a tall order, it seems likely that this is not a practical concern.
Although it is a tall order, this issue seems positioned to attract Republican moderates.
The other divisive issue I wanted to mention is that of strict constructionists. Strict constructionism is a Constitutional argument that the powers of the federal government are explicitly defined, and so the implementation of entitlement programs are unconstitutional.
In Article 1, Section 8, Clause 1 the Taxing and Spending Clause contains the General Welfare Clause, in bold:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
This is followed be a list of explicit powers. Then we look at the Tenth Amendment, which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Which is argued that it places a limit on the explicit powers. Loose constructionists claim that the General Welfare Clause above allows the government to define implicit powers not called out in the Constitution. Alexander Hamilton says of this paraphrased from Wikipedia
the broader view of Alexander Hamilton that spending is an enumerated power that Congress may exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.The current situation is based on Hamilton's interpretation for loose constructionism. Practically speaking, it will take a decision by the Supreme Court, heavy with jurists who are strict constructionists, to have a changed outcome on this issue. This will abolish Welfare, Social Security, Medicare, Medicaid, and some say the FBI, FAA, and many other federal agencies. These would all need to be enacted through Constitutional Amendments or implemented by the state.
Whig Issues. The Whigs want to use States Rights as a way to move moral issues out of the sphere of the federal government, so this applies to issues such as abortion and gay rights. What is less clear is what the Whig position is on entitlements. Under Fiscal Responsibility, the Whig Issues state:
The Modern Whig philosophy is to empower the states with the resources to handle their unique affairs.
While under Health care they state:
The Modern Whig Party is continuing to work with experts in the field to develop a realistic, common-sense proposal for this issue.
and there is no mention of the involvement of the states.
I personally see the argument made for strict constructionism, and so I would like to see a SCOTUS decision. I think that entitlements are best left to the states and different states can decide different types of entitlements, including Welfare, Social Security, and Healthcare to include Medicaid and Medicare.
This is clearly a Republican versus Democratic issue as well. My personal position is the Republican side, on both issues I am mentioning today. This is in opposition to my desire to see Democratic moderates join the Whigs. I don't know what issues are important to them but I intend to find out. [ed. perhaps the Whig position on abortion and my personal opinion on strict constructionism are not problems for Democratic moderates. It would still be good to get an idea of the issues they feel strongly about.]
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20 comments:
I'll take on both issues, because the Constructionist arguement, which I support, applies to abortion as well.
Regardless of personal feelings on the subject, abortion is bad law. The Supreme Court made law when it decided Roe v Wade. That is not their job. No legislation was involved to make it a federally supported "right." I believe it should be an issue left up to the states and their legilative bodies.
Additionally, I do not believe that the Constitution is a living item. This allows for too much legal flexibility based on a particular judge(s) interpretation. So, yes I am a strict Constutionalist.
hey John, thanks for commenting! I am not that familiar with Abortion law. I don't know what Roe v Wade actually does. I thought it just made abortion legal. Ok, I just checked out http://en.wikipedia.org/wiki/Roe_v._Wade and it seems to do just that based on the Due Process Clause. It seems it overturned a lot of other laws that were forbidding aborton. I don't know on what basis you think those laws were constitutional.
I was surprised to read that you don't think the Constitution is a living document. Does that mean that you do not agree with our ability to amend the document with a Constitutional Amendment? I think that being a strict constructionist means that there are no implicit powers given by the Constitution. So basically Congress can't make shit up.
Amending is one thing; interpretation is another. Take the Second Amendment as an example. Some folks believe that because militias are not an intergral part of the common defense, private citizens, therefore, don't need to own firearms. Another example is the impending trial of KSM. Are we now going to have to Marandize terrorists? If we don't, and he is still tried in a civilian court, how will this affect civilian trials of US citizens. Is discovery going to jeopardize intelligence/interogation techniques.
If you look at the SCOTUS, the conservatives (Scalia, Thomas, Roberts, Allito) are Constiutionalists. They rule according to law as it has been established through the Constitution and subsequent prescedent. The living/breathing Constitution, I think, allows for a lot of flexible rulings by judges that doesn't necessarily follow a consistant pattern. I worry that the living/breathing notion creates the ability to wipe away law or freedoms that are deemed "outdated" or out moded.
On the abortion issue, I encourage you to read the decenting opinion from Justices White and Rehnquist. Their interpretation was one in which they did not see any Constitutional reference that supported this new right.
Blackmun's opinion became the prime example of "judicial fiat", whereby, the judiciary writes law. This is the root of the "living Constitution" theory. Remember, it's Life, Liberty, Pursuit of Happiness.
Well, I read Blackmun's opinion and the dissents from White and Rehnquist. I just don't get the law that is being cited with the Due Process Clause and how it applies to Roe v Wade - the right to privacy. I am no lawyer. Is it because it is claimed that pregnancy restricts Liberty?
I think that Amending is an act of the legislative branch, while the SCOTUS is charge with interpretation. I think that interpretation is their job.
I do see how writing law by the SCOTUS is bad, and if the interpretation results in them doing that with the Due Process Clause, that seems to be a bridge too far.
To the anonymous ‘Strict Constitutionalist’ (SC), since all of the anonymous post so far appear to be from the same person I will address them as such. You say that there was no legislation involved in making abortion a federally supported “right”. I find that an odd thing for a SC to say, it flies in the face of the 9th, 10th, and 14th amendments.
Our rights are inherent to the people, not granted by the government. If our rights are merely granted by the government, then they can be removed at the stroke of a pen. I believe the Constitution is a yoke on our government(s) and elected officials. Your apparent SC interpretation of the Constitution is a yoke of oppression on the people.
You say “Amending is one thing; interpretation is another” and then use Miranda warnings in your argument. Again I find it odd you, as a SC, would use ‘Miranda’ to make any point in your case. Nowhere in the Constitution does it say that a government agent must advise you of your constitutional rights when they are adversarial against you. Yet an “interpretation” of the Supreme Court made ‘Miranda warnings’ a procedural requirement of government agents when they question you post arrest.
You then tell Rob to read White and Rehnquist’s interpretations in there dissents. It seems you will support judicial interpretations that bolster your opinion but cry foul on those that do not. How is that ‘strict constitutionalist’?
Also, “Life, Liberty, and the Pursuit of Happiness” is from the Declaration of Independence, it does not appear in the Constitution. As a ‘strict constitutionalist’ would that phrase even be relevant?
Interpreting to the point that it goes around the amending process is what I'm getting at. Then the SCOTUS or various circuit courts become legislators. I think that's what happened with Roe. But, yes, I'm also a little confused by the privacy part. I also think that was part of the dissent: the notion that a woman's right to privacy is impeded on by the introduction of pregnancy (I'm not even sure they refered to the feotus as a "life.") Additionally, the notion that SCOTUS could over-ride every other state's abortion laws with one fell swoop without any consideration for state law or the peoples' will was another sticking point of the dissenting justices. I think that is further support for the notion that issues like this are a state's business and not to be dealt with on a federal level unless done so on an individual basis.
I appreciate all the comments! I feel like I have a real blog now! :) I would ask anonymous posters to sign with their first name, so we can tell people apart. I think the third anonymous poster was someone else and not John, my cousin.
I am getting really confused by terminology...
Regarding Constitutional Powers being implicit with the General Welfare Clause, people are either Strict Constructionists if they are against it or Loose Constructionists if they are for it. This implicit power gave rise to entitlements.
Regarding Constitutional Rights being defined by way of the 14th Amendment and the Due Process Clause, people are either Strict Constitutionalists if they are against it and people who are for it are What? What is the correct understanding of the Strict Constitutionalist position regarding SCOTUS opinion as being interpretations?
Thanks, Rob
To the post from anonymous at 9:33am, I take it that your are equally dissatisfied with the interpretive rulings of the SOCTUS in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Stenberg, Attorney General of Nebraska, et al. v. Carhart (2000), Gonzales v. Carhart (2007).
Each of those rulings tightened the regulations on abortions. They affirmed certain states’ rules for abortions and thereby restricting some abortions. As a matter of principle on your part are these rulings equally reprehensible? Or are they, as a matter of your perspective, acceptable interpretations?
One man’s “judicial activism” is another man’s “proper application of the law.” I believe judicial activism like beauty, is in the eye of the beholder.
I tell you what, I'll go study a lot harder and then decide the strict v loose constitutional argument.
As far as abortion goes, I'm against it, but I do feel it is state issue, not federal.
And yeah, I know that Life, Liberty and the Pursuit of Happiness is from the Declaration.
Here's a suggestion for the OD Whig: if you want to intice me, then tell me where I'm wrong in a less condescending manner. Perhaps suggest some reasons why you believe Roe was good and the dissent was wrong. JS
JS, my issue is not with your opinions; it is in your delivery. Words matter, you declare yourself a strict constitutionalist and produce claims in opposition to the very ideology you proclaim. People do themselves a disservice when they proclaim a position and then destroy themselves with negative clarifiers. Take the “capitalist” who professes the need for competition to make the free market work, the end game of “true” capitalism is to be the last one producing the item or providing the service and therefore dominating the market.
Look, we have similar beliefs on abortion; I clearly offended you and I apologize. I hear it all over the net, I am a... this or that, I guess people need to associate. I think it is better to just say,”I am JS or OD, I have done my homework, this is my position and lets go at it with logical serious debate.”
OD, the problem is that you are a lawyer, I believe. As such, you have penchant for exploring these issues from that perspective. We, on the other hand, and I am presuming to speak for John here, have at best a layman's familiarity with the issue and no grounding in the nuances. We know enough, second hand, to say "yeah, what the SCOTUS did here was wrong". I personally tried to read the 14th Amendment and see what was up and it wasn't clear to me at all. It kinda pisses me off too, cause I thought the Constitution was supposed to be readable by the common man. No, it's a bunch of lawyer speak. So I hope JS comes back and answers you.
By my basic understanding of strict Constiutionalism is that it strictly adhere's to the Const. as written rather than interpreting to change with the times. Additionally, when there are issues not specifically covered by the Const., other documentation from the times are used to establish the framers intent. Furthermore, My use of "intent" was used, rather poorly, as a reference to judicial activism. The Roe Dissent, to me, seemed to pick up this same sentiment.
Now, who wants to talk about cooking? JS
You want a Whig cooking thread? Help us come up with a signature dish? Right on! :-)
OD, I am hoping you can help me here. Regarding the 24th Amendment, the Due Process Clause and the right to privacy, here is part of Section 1 of the 14th Amendment:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law"
So how is a right to privacy defined from above? And my other question is how does a right to privacy protect a pregnant woman's decision to abort?
Mr. Withers, how dare you slander my good name… how dare you call me a… a… a lawyer! :)
For such indignities I shall not share my recipe for Southern “Fried” (baked actually) Chicken! {A Joke, I am not upset} But seriously I am not a lawyer; I guess I am just a jerk. That said let’s get into your question on the 14th Amendment.
The amendment itself does not spell out your privacy rights; your “privacy rights” are derived from the bill of rights, specifically the 1st, 3rd, 4th, 5th, 9th, and 10th Amendments. You have to read the full opinion in “Roe” and the precedent cases to see how and why the Courts have interpreted the phrase “nor shall any State deprive any person of life, liberty, or property, without due process of law”, specifically the word “liberty”, to bolster the “privacy rights” argument. I will further break it down if you want.
To answer you second part, it deals with the “…without due process of law” wording. In short, appellate hearings can take a year to reach a court docket or years to reach the SOCTUS. Of course a pregnancy typically lasts 9 months so she is denied due process by appellate docket scheduling. Although the case is referred to as “Roe v. Wade”, there were other cases filed as companion cases with Roe, these cases also presented other elements that weighed in on “legal chain” of rulings. I will also break this down further if you want.
You have to look at the history that surrounds the cases and not just the rulings. I can elaborate on that, I just don’t want to sound preachy, only if you want me to.
Will, my sincere apologies! I assumed since you were so knowledgeable about these various laws and decisions that it was your profession! Please share your recipe. :) So what do you do? I am a software engineer.
It does not spell out the "right to privacy" indeed! I had no idea it was so convoluted. If you have the time, I would be interested in a brief break down of how they came to "right to privacy".
I understand the limit that court scheduling has on pregnancy. So how does "right to privacy" translate to "right to abortion"?
What would it take to move abortion from a federally protected act to one each state could determine on it's own?
Thanks! RW
Rob, sorry in the delay in response to your request. I hope you and yours had a good thanksgiving. Here is a quick rundown of the “right of privacy” as opined in Roe v. Wade.
- Boyd v. United States (1886)
- “The Right To Privacy”, Harvard Law Review, Dec. 15, 1890, L. Brander and S. Warren
- Union Pacific Railway Co. v. Botsford (1891)
- Meyer v. State of Nebraska (1923)
- Olmstead v. United States (1928)
- Palko v. Connecticut (1937)
- Skinner v. Oklahoma (1942)
- Prince v. Massachusetts (1944)
- Griswold v, Connecticut (1965)
- Katz v. United States (1967)
- Terry v. Ohio (1968)
- Stanley v. Georgia (1969)
- Eisenstadt v. Baird (1972)
All of these court opinions are available for online review, you can read the summaries but you may miss the context of the citations.
I looking at a few of these. It's a lot! I read the summary of Griswold v, Connecticut (1965) on Wikipedia. I read how Roe v Wade based the right to privacy on both the 9th Amendment and the 14th Amendment via Griswold v, Connecticut (1965). I didn't go very deep into it as I am in the midst of reading "Just and Unjust Wars" to question my Iraq position and it has me deeply involved - I have 3 more chapters to go. Thank you for posting these and I'll dig deeper when I have a chance.
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