Wednesday, March 15, 2006

Bruce Fein should be totally overruled: A Response to an absurd proposal

I use to have some respect for Bruce Fein and his opinions on Constitutional law and the courts. After all he is a highly respected Washington insider, writes columns for the Washington Times and appears on news programs to discuss current events. But his piece in the March 14, 2006 Washington Times is about the worst form of convoluted reasoning that I have seen in recent years. I would expect this from some apologist for abortion, or from some liberal Ivy League professor who has nursed his students on the legal positivism of Roe and fed them on the meat of substantive due process. But I expect more from those who take the Constitution seriously.

Perhaps Fein represents the establishment in Washington D.C. that does not want to end the killing of a million children a year. After all he is right when he implies that certain powers in the Capitol are afraid to tackle the issue head on. And he is right that there is an “abortion” mentality in this country that considers “disposal” of people or property to be a perfectly acceptable means of solving a problem. Yet his proposed solution will only ramp up the controversy, not end it.

Lets be very clear. There will never be an end to the abortion issue until all unborn children are protected in law. Period.

Those of us who have spent the last five, ten, fifteen, twenty, twenty-five, thirty, thirty-five years fighting to end abortion are not going to quit until we have ended this holocaust.

Further, our children are taking up the banner and they are less patient than those of us tempered by years. They know that they themselves could have been easily aborted. They refer to themselves as the “survivors’ and as they become more adept at the political game, they will be a force with which to reckon. Please note: it has been the pro-lifers who have been having the children for the most part. When you are wondering who is going to be paying into social security, thank us for the next generation.

Now onto Fein’s convoluted logic: Roe was poorly decided. Well there is no argument there. After all, Blackmun skirts the only relevant questions, to wit, what happens in an abortion and is the “fetus” a “person” in law. We know what happens in an abortion. The abortionist kills the unborn child or “fetus” for those of you who prefer the Latin word for “young one.” We also know that Blackmun himself admitted in the decision that if the “fetus” were considered a human being, the 14th Amendment would apply and the argument to legalize abortion would fail. Fein, however, wants to have the same result for “practical” reasons. Since when should a court reason the law only on the basis of a practical consideration? Fein would have the court ignore a critical reality. An abortion kills a human being.

As for political prudence, again he misses what has been at play for the last 33 years. Fein also has a poor recollection of history. Abortion was being debated in the state legislatures and in state courts long before Roe was decided in 1973. Certain states had “liberalized” their state laws; others had rejected such efforts. A very young pro-life movement was starting and responding to the already entrenched pro-abortion forces. Yet to the surprise of the pro-abortion dominated media, the rights to life groups were able to defeat efforts to legalize abortion in Michigan and North Dakota in November 1972. Even liberal New York had repealed its 1970 abortion law, only to have the repeal vetoed by the governor. Certain state courts had upheld the legality of their state abortion laws. Even Ronald Reagan admitted that his signing of the bill in 1967 was a mistake. When he realized that it helped open the gates to abortion in California, “he was very upset”, according to William P. Clark, a national security adviser and secretary of the Interior Department under Reagan. Clark noted that Reagan believed “it was the biggest mistake he made in government. He tried to square it away as time went on."

"Make no mistake, abortion-on-demand is not a right granted by the Constitution," Reagan wrote for the Human Life Review. "No serious scholar, including one disposed to agree with the court's result, has argued that the framers of the Constitution intended to create such a right."

Had the court not acted in Roe, the Right to Life movement would have stopped the overall legalization of abortion. But the U.S. Supreme Court intervened, took it out of the hands of the states and for the last 33 years, has acted as a super legislature on the subject of abortion. As for the republican form of government that decides issues democratically, one may argue that this has been forever placed in a state of suspension, given the court’s penchant for taking such matters and ruling on them regardless of the lack of constitutional implication.

Fein wants to uphold the central finding of Roe as it applies to he first trimester. Yet, where in the constitution does Fein determine this constitutional right to obtain an abortion exist? In my reading of the constitution, I can find no right to an abortion. Neither can any honest scholar. The only people who find a right to abortion are those who want to be able to kill children in the womb. They are similar to the folks who want to be able to kill old people, disabled people or people with “lives devoid of meaning.”

He supports this argument to allow the killing to continue by pointing out the failure of Republicans in Congress to be more aggressive in curtailing the effects of Roe. Let me get this straight: because the congress has failed to act, we should let the children die. Because Bush has not been more out front on the subject (frankly something he ought to do), we should give up the fight.

The fellow has no clue on what it is like across the country to care about protecting life. As I said before, we, pro-lifers, are not going to quit. We are not going to give up. We intend to win this war. And it is a war for the soul of the nation. No one liked it when Buchanan mentioned the culture wars in 1992, but he was right. The battle over abortion is about defining the future of America. All of the fights over the court nominees came down to the abortion issue. The abortion issue has played a large part in the demise of the Democratic Party as it became the party of abortion. The growth of the Republican Party has been in no small part because it adopted a pro-life plank in its platform. And just because the politicians have not been as zealous as they should be does not mean the right to life movement, the new abolitionists, are going to stop the battle. Yet Fein considers that the right to life has no power to get things done.

True, The abortion industry does have more money than the right to life movement. The abortionists do control the establishment media for the most part, i.e. The New York Times, ABC, CBS, etc. The abortion mentality controls much of the thinking in the university system. And the abortionists get a lot of money from the government. But throughout the country, there is a growth influence and a change of attitude. The Pro-Life movement still represents the grassroots and the heartland of America. The Pro-Life movement represents the future in its membership, its ideas and its dreams. We are about life. The other side represents death. Most people just need an excuse to join the pro-life cause. Seeing the pictures of an ultrasound of an 11-week-old baby gives people just the reason to choose life. And then there is the Internet.

There is also another trend that mainstream Washington does not hear or see. This is the number of women who are publicly speaking out in remorse over the abortion they procured. Groups like “Silent no More,” Women Deserve Better, ” and “Operation Outcry” are all raising awareness that abortion is not good for women. Should they ever get some serious publicity, this growing outcry against abortion could be the tipping point to galvanize public opinion against abortion.

Perhaps Fein reflects the fear factor in Washington. After all once the issue of legal abortion is addressed with a finality, that is, there is a law protecting people from conception until natural death, the folks in Washington will be asked to provide support for those programs to assist mothers and children. Perhaps there will be a focus on what kind of education promotes a greater respect for the human person. Once activated many of these pro-life political activists are going to demand that all aspects of government treat the human person with respect for his rights as a person. Of course, it is always a good thing for the populace to have a real say in the affairs of government. After all it is a government not of elites, but a government of the people; people created equal and endowed by their Creator with certain unalienable rights, among these life.

Mr. Fein, read you Constitution. There is no right to abortion found in the document, but there is a right to life. That right to life applies to all persons, born and unborn.

2 Comments:

At 1:37 PM, Blogger Alnot said...

Great Post and well done. I am pro life and I will never change my mind. To do so would mean I never was and my legacy will never be.

 
At 7:49 AM, Anonymous Peter Knickerbocker said...

Bruce Fein now believes in a "living constitution." There is no excuse for upholding a frivilous decision such as Roe. And that goes for lower court judges as well. Judges take an oath to the Constitution, not the Supreme Court. When an utterly frivilous and unconstitutional decision such as Roe enables crimes against humanity, following "binding precedent" is no excuse. Not for a lower court judge, not for any public officer. Any federal judge that treats Roe as binding precedent commits a "high crime" under the Impeachment Clause, as the term was understood by the Constitutional Convention (i.e., from English usage, a political crime, a crime against the constitution or political order).

Although the appointment of constitutionalist judges such as Chief Justice Roberts and Justice Alito is a very positive development, the politicization of the judiciary can only be cured by the use of impeachment, removal and disqualification for future office of those judges that subvert, or enable the subversion, of the Constitution. The promise to use impeachment to defend the Constitution against lawless judges should be a top campaign issue. We should not be deterred by the opposition of good judges to this remedy. They are only human and can be expected to be influenced by their membership in the judicial club.

As far as I can see, only by enforcing Constitutionalism through the active use of impeachment, can we restore the true independence of a judiciary that judges by the law.

 

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