24 January 2006

Freedoms, Rights and the People

If you are going to talk about the US Constitution and what it does and does not allow, the first thing that must be realized is that it is *not* a system where the Federal Government grants rights. It is a *negative* document, saying that some few rights are given to Government on the Legislative side in Article I, Section 8 through 10, the Executive Article II, Section 2 and 3 (and is *that* list short, sweet and to the point!), and the Judicial in Article III, Section 2 and three (again, very short and sweet). These are the things that Government is *allowed* to do. That is *it*, with some modifications from the Amendments.

Now as to the people we get in Article IV, Section 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

And of extreme interest is the last paragraph in Article I, Section 8: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Now as The Bill of Rights (or first 10 amendments) and the other Amendments are also applicable, lets see how they look at the rights of individuals and the states with respect to the Federal Government.

Amendment IV:

  • "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    [Quite a few are hitting on this with some of the recent NSA goings-on. Let me say that the question about communications over regulated communication systems is pretty well established law, within the United States. However, when communicating outside the United States, those portions going in that direction then fall under the purview of the Executive and Treaties. These are the mechanisms set up to deal with the outside world inside the Constitution. Presidential power is short and sweet, and definitely *includes* this("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"). And as the Judicial branch only is to intervene between other Countries and the United States for *legal* matters, and the Executive is the *only* branch mentioned for establishing Embassies, the foreign outlook of the US Federal Government is vested in the Executive branch. The Legislative may set commerce and immigration limits and Declare War, but have no other mentioned powers for interacting with the outside world. So, for prosecution of illegal activities involving foreign communications the Executive *must* have a Warrant for the United States side of the activity. If it is for non-legal proceedings or military affairs, the Executive is given wide leeway. And the Legislative branch would have a *very* difficult time hemming that in as it is specifically *not* granted powers over foreign communications for anything other than *legality* of such communications with regards to cases that will be going to trial. The FISA courts, set up as an inferior federal court under Congress, fits that bill. Any attempts by Congress to regulate more than *that* is, IMHO, outside of their scope of powers *granted* by the people through the Constitution to them.]

  • Amendment V: "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 offence 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."
The Federal Government cannot step into States matters, save to point out lack of due process in the laws of the States. This is an important precept as it only conveys limited power to the Federal Government to ensure that the rights of the people are not abridged and that they are fairly ensured by the States. Do note that there may be *differences* amongst the States, but so long as there is understood due process and those differences do not impinge upon those crossing state lines unfairly, the Federal Government may *not* step in. There does not need to be uniformity in the laws of the States, just understood regularity and differences that are accepted by the citizens of that State as representing due process not out of line with the rights of the citizens as ensured by the Federal Government.

  • Amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
When there is a conflict between the inherent rights of the people and the Federal Government's granted rights to govern, those granted rights take secondary precedence to the rights of the people. The people are sovereign in the United States, and the Federal Government is allowed such rights to help govern, but not control its people.

  • Amendment X: "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."
And to re-inforce this revolutionary idea, this Amendment clearly states it. The people or States of the United States are considered to have all rights not granted to the Federal Government as stated within the Constitution.

So, where does Roe v Wade stand in all of this? Needless to say the right to an abortion is not mentioned in the Constitution, nor is a right to privacy. However, rights not enumerated to the Federal Government are retained by the States and the people (Amendments IX and X). The Supreme Court by ruling out a complete ban on abortion implicitly allows partial bans on abortion based on a trimester system. The Court did not intend to legislate but to offer guidance in what was and was not Constitutional when given the rights involved. The Constitution is flexible over time and amenable to some changes, and in all cases there must be a balancing of rights and responsibilities between the people and its various governments. What the Supreme Court attempted to do was establish the type of due process outline that would satisfy the Constitution. The States, and the people, were expected to work out the shades of grey.

Instead, a polarization of sides happened, with abortion becoming a black and white issue of all or nothing. The States, especially in the post-World War II, have lost some of their power that they had previously, because the people saw what, exactly, a Federal Government can do. What the people have forgotten as that the rights belong to them and the States, not the Federal Government. In Article 2, Section 4 it clearly lets the Federal Government know that the States determine who is a citizen of that state. As the States cannot set immigration policy, this can only mean that it pertains to actual, real accounting of living individuals with that State. Further, Roe v Wade as an attempt to point out that there is no clear precedent beyond the biological birth, points out that the States should really do something in this area!

Has a court reading ever been so misread in history? In this era of technological wonders, the concept that an unborn but viable life form can be declared to be a citizen (albeit a Minor) seems to be one that is hard to get across. And there should be a system of due process involved in the determination. And the States are allowed leeway in making such laws as long as they are regular between the States, but they need not be uniform. Like all things Constitutional this answer will *not* satisfy everyone completely, but will bring order to the lives of the citizenry. So, here is something like what the Supreme Court meant, way back in 1973.

  1. The right to a mother or host to have an abortion before a fetus is viable shall not be abridged.
  2. The status of a fetus as a citizen shall be determined within the second trimester or at a time appropriate given the ability of the State to ensure viability of the fetus outside the mother or host.
  3. The State shall gather evidence and record information on each fetus, including gender and genetic information and duly record such information for tracking of that fetus when it becomes a citizen.
  4. When a fetus is granted citizenship, this is a condition in which, should the mother or other host have difficulties, the State is to ensure that all efforts to continue the life of both citizens is respected. If that cannot be done, the existing citizen is given preference in continued existence, save if that citizen allows their life to be ended for the new one to begin.
  5. If it is legally determined that a fetus, as citizen, is endangering the life of the mother or other host, it shall be removed for nurturement at State cost. Parents, guardians or other interested parties may share or take over this burden through normalized procedures.
  6. If a mother or other host determines that it cannot continue a pregnancy to completion, and the fetus is granted citizenship, that mother or other host may then apply to the State for care and compensation. During such time no employer is allowed to discontinue employment due to such circumstances. Upon delivery or other emergence of the new citizen, that citizen shall become a ward of the State and that mother or host will not have any rights nor oversight over the new citizen.
  7. When determined a new citizen has all rights of a Minor in their State, and all actions taken against that citizen shall be determined as a non-competent Minor within that State.
  8. The State is to be appraised of conditions of the new citizen at intervals accepted by the medical community, the individuals involved and circumstances. If regular medical visits cannot be done due to poverty, then the State shall provide regular services as determined by that State.
This framework provides for all the major problems on both sides of the abortion question, establishes regularized procedures and otherwise allows for the settling of who exactly is and is not entitled to what rights. Note that over time this system will move the time *downwards* as medical science advances. This removes the trimester system which is known as a 'hack' and replaces it with a flexible system that changes with time and circumstances of society *within* the State. Secondly, and more importantly, it lays out how to treat the new citizen so that no *new* laws need be passed in the legal system. Murder of a mother or host carrying a citizen based on viability is a *double* offense as two citizens are killed.

What this will *not* do is satisfy the philosophical argument of when life begins. It is not *meant* to do that. It is *meant* to determine viable life and citizenship. I have living cells in my body that are not my genetic material, and so does anyone born via normal biological processes. Sometimes they clump together. Are these to be considered a separate life? I do not think so, and it would be hard to argue that they should be taken from me, cultured, grown, implanted and brought to full term elsewhere. Life may begin at conception, but citizenship is not conferred at such time, although at some point technology may have a say on even when it is possible to host life outside of biology and bring it to sustainment without a biological mother or host. We are not there yet.

Do *not* look to the Federal Government for any but the most basic safeguards. That is not how the system of Governments was set up in the United States. The rights are vested in the people, the States they create and *protected* by the Federal Government.

Not the other way around.

[UPDATE: 17 FEB 2006] Some further thoughts on this proposed solution. It would do two things one, immediate, the other long term.

First, it would effectively remove the need for NARAL. With the guarantees in place, NARAL would lose its reason for being as the citizens of each state would have their say. Yes, those believing that life begins and conception will still be around, but they gain one *extremely* important thing.

Second, the life begins at conception groups now have a *goal* that is achievable via technology. If they are positively and absolutely serious about wanting a single, fertilized cell to survive, they *must* fund technology to do so! In other words they must move from a *thou shall not* sort of movement to one in which *we want to know everything about the beginning of life so that it may be preserved and protected* group. This means scientific reasearch and lots of it, in the field of human reproductive technology and biomedicine. By doing this they will help the entire citizenry and, perforce, all of humankind in expanding the bounds of what is known in this area. By putting their money where their mouth is and working *damn* hard to push sustainment of life outside of an original human host and via technological means only, then life effectively begins wherever it can be pushed to be sustained. The 'right to life' is *not* the same as being a citizen. Once citizenship is established, then the push (via the viability language) to make sustainable life as early as possible becomes the *goal*.

That is if either *side* in this question actually believe in what they are saying and not just getting intemperate because their vision of what *should be* is overriding what *can be* done. Half a loaf now gives time for another loaf to be baked, in full. It is not a question of 'now and forever', it is a question of understanding biology, reproduction, life and building a platform for early intervention and sustainment, if need be. As a bonus we may *finally* understand fully about miscarriages, about many deformities that happen due to physical and chemical problems, about a whole host of things that will spring from this.

BUT this can only happen if we change our perspective and outlook. Being an absolutist tends to blind one as to what is achievable *now* that will help bring about the end result eventually and for good and all.

The right to life people could take up this position tomorrow, defang NARAL, be seen as supporters of life and not deniers of rights, be a socially positive force to understand something that helps the entire populace around the world and be seen to be offering the olive branch of peace to end the debate in a way that lets the other side *win* immediately, but still lets the right to life people *win* in the long run. Yes, atrocities will still go on... *but* every day, every week, every month that sustainability outside of human host or with an alternative host or via purely technical means is pushed further towards that initial fertilization will mean saving many, many, many more lives and improve the understanding of life for *everyone*.

Is that the goal of the right to life movement? To be seen as liberators and protectors of life as early as possible. And to do the necessary *hard work* to achieve those ends without having to protest, be disobedient, violate laws and other such.

And, as someone not impressed by either side at this point, I would wholeheartedly agree to this, just so that some of the venom can be drained from the circulatory system of our society.

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