Counting Pregnant Women

By Cyberquill 11/21/20118 Comments

And as for those women whose ill will you have reason to fear, admonish them first; then leave them alone in bed; then beat them; and if thereupon they pay you heed, do not seek to harm them. (The Holy Qur’an, 4:34)

According to various accounts, the Prophet Muhammad was none to thrilled about the notion of violence against women: “I wanted one thing, but God has willed another thing,” he reportedly lamented, whereupon he compromised by advocating that these beatings be done very, very lightly and recommended using feathers as scourges.

Whether this is true or not, I have no idea, but assuming it is, the Messenger’s attitude showcases a refreshing breeze of dissent from an otherwise respected charter, an attitude that ought to be on display more often by those who desire to come across as principled and independent thinkers rather than reactionary eisegetes.

Of course, it is possible that the U.S. Constitution just happens to reflect your personal views to a T. (Yes, we’ve switched charters now.)

Chances are, though, that one or the other constitutional provision—or the absence of one—sits poorly with your idea of a more perfect union; that in certain areas, you want one thing, but the Framers and Amenders have willed another or altogether failed to cover a subject dear to your heart such that no constitutional guidance on it exists; and that some law you oppose, or some liberty you object to, may, alas, be in tuneful keeping with the vaunted document after all.

As a devout vegetarian, for instance, I wish that human consumption of meat were unconstitutional. I’d love to be able to argue, in a manner that might conceivably pass the laugh test, that the constitutional concept of personhood extended to cute little lambs and cattle. And given the link between animal fats and the nation’s number one killer, I’d love to be able to present a cogent General Welfare case against hominal omnivorism.

Sadly, however, there’s no way on earth the Constitution, as written, prohibits butcher shops and steak houses. Insisting it did would be as fatuous as it would be for some pork chops junkie to declare that practicing and promoting vegetarianism violated the Commerce Clause.

Nothing against testing how far we can bend and stretch the words on the page so they accommodate our own views for the purpose of honing our argumentation skills in debating class; in the real world, however, those fewer-than-5,000 words that form the framework of the American system do not mandate everything we want nor do they outlaw everything we despise.

For instance, whether we welcome the infamous 2009 Citizen United decision by the U.S. Supreme Court—striking down a law that “prohibited corporations and unions from using their general treasury funds to make independent expenditures for speech that expressly advocated the election or defeat of a candidate”—or whether we deem it “terrible for the country” really has beans to do with whether or not the First Amendment compelled the decision. We need no Constitution to decide whether something is “good” or “bad.” To do that, all we need is our own moral compass. But to assume that our moral compass and the Constitution are synched to the same drummer by default suggests slothful thinking suffused with a hefty dash of hubris.

So the most basic step in assessing the validity—as opposed to desirablity—of Citizen United (or any other decision) would be to read the actual opinion of the Court plus its dissents. Of those among us who hold strong views about it one way or the other, it’s probably safe to assume that a greater percentage have been to the moon than done that. Most, I’m afraid, subscribe to the “If I like it, it’s constitutional, and if I hate it, it ain’t” school of constitutional construction and confine their research to skimming editorials composed by ideological allies, selected primarily in order to reinforce rather than challenge already existing beliefs.

Too many people appear to regard the Constitution as a mere parchment reflector of their own views: if they’re pro-life, the 14th Amendment bestows personhood upon a fetus. If they’re pro-choice, the 14th Amendment does no such thing. If they’re pro-gay-marriage, the Equal Protection Clause guarantees it; if not, same sex unions simply aren’t covered. If they’re against a particular military action, Congress not having declared war renders it unconstitutional; otherwise, the orders by the commander in chief suffice to make the hostilities legal. If they applaud someone’s actions, those actions are a form of protected expression; otherwise, freedom of speech doesn’t apply. If they’re anti-capital-punishment, the Eighth Amendment forbids it. And so on and so forth.

As if by magic, the Constitution always says what they want it to say.

Of course, in order to attain such magic and keep it going, they must hopscotch between interpretive methodologies like grasshoppers on meth. So on one issue the Constitution is dead, and on another it’s alive, i.e., with respect to issue A, the words of the relevant provision are taken to mean what they meant when they were passed (if that meaning happens to align nicely with the interpreter’s views, thus rendering further interpretative exertions not only unnecessary but potentially counterproductive), and with respect to issue B, the words—on the premise that those words were never conceived as an ossified set of instructions but to echo the prevailing mores of an ever evolving society—are being reëvaluated to taste, no matter how unambiguous they may seem on their face, until they can be used to shore up whatever point of view needs constitutional shoring up. Some provisions are read in isolation, and if doing so leads to unwanted conclusions, these provisions are synergistically combined with others until the desired reading can be justified. Or, should controversy exist as to conflicting intents of different Drafters, on issue A the original intent of Framer X is afforded right-of-way over that of Framer Y, and on issue B the original intent of Framer Y trumps that of Framer X, whichever works best.

Flaming conservatives, for example, eager by nature to scotch all debate on whether the Second Amendment indeed grants the hoi polloi an unfettered right to possess firearms, will likely dismiss the “Militia” clause as a mere stylistic exordium prepended to make the amendment scan better when read out aloud, and, with peremptory panache, point to the plain-as-a-pikestaff pellucidity of the words “the right of the people to keep and bear Arms, shall not be infringed” as self-explanatory enough to establish universal gun rights; yet then they’ll jump through every interpretive hoop imaginable in attempting to demonstrate that the Citizenship Clause of the 14th Amendment does not really mean what it says with like pikestaff clarity (namely that all persons born in the U.S. are citizens thereof, including those born to illegal aliens), to which end they’ll set upon the “subject of the jurisdiction thereof” part like famished lobos upon a pronghorn and run themselves ragged hunting for any statement on record by any individual ever so tangentially involved in the drafting of the 14th that may ever so tenuously support the oddly counter-intuitive notion that being fineable and deportable under U.S. law doesn’t presume being subject to U.S. jurisdiction—now having completely abandoned the “plain text” approach that had served them so beautifully when it came to decoding the Second, as it would compel a reading of the 14th at intolerable variance with their desires.

(In reverse, the same example applies to ardent liberals: for them, all debate stops with the plain text of the Citizenship Clause, but no intellectual contortion will be spared to support the thesis that the “well-regulated Militia” of 1789 was composed of creatures other than “the people.”)

To completely divorce one’s druthers from constitutional construction—or Biblical or Qur’anic or any other construction—may be an unattainable ideal. Yet on the other end of the spectrum, to merrily take turns resorting to textualism, Framer’s intent, the notion of a “living” Constitution (an utterly nonsensical concept that defeats the whole purpose of a written constitution, as discussed in more detail here), prudentialism, structuralism, or any other one from the ragbag of interpretive methodologies—a strategy known as “looking over a crowd and picking out your friends”—depending on whichever approach promises the preferable result on a given issue and without employing a consistent hierarchy of methods, identifies the interpreter as an activist stuck in limbic mode who is either averse to or incapable of even aspiring toward the ideal of dispassionate analysis. (And anyone who does not consider dispassionate analysis to be the ideal might as well tear out the page with the Preamble, frame it, and feed the remaining pages of their Constitution into the shredder—what’s the point of a set of guidelines that will invariably be interpreted to mirror one’s own definition of Justice, Liberty, Welfare, and a more perfect Union anyway?)

The overall level of conformity between personal desire and constitutional interpretation inclines toward statistical improbability. Every two seconds, it seems, some exasperated ideologue as well as their nemesis from the enemy camp invoke the Constitution to support diametrically opposite conclusions. But if everyone assessed the document as objectively as they claim—at least I’ve never heard anyone admit to engaging in subjective analysis based on personal preference—then shouldn’t there, for instance, be far more avid pro-choicers who nonetheless believe that Roe v. Wade was wrongly decided? Not because they don’t like the decision itself and wish it were constitutionally justifiable (just as I wish banning steak houses were constitutionally justifiable), but because they sincerely fail to see an unarticulated right to privacy that implies unfettered abortion rights reverberate forth from between the lines? And how come so often people’s personal feelings about guns just happen to align with their allegedly objective reading of the Second Amendment? And what exactly should one’s sympathy for or antipathy toward big corporations or “the rich” have to do with whether one believes Citizens United was decided correctly or not?

Justice Antonin Scalia—frequently referred to as the “most conservative” member of the U.S. Supreme Court—was asked whether the term “persons” in the U.S. Constitution conferred Equal Protection rights upon the unborn:

My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that “persons” are entitled to equal protection of the laws, I think it clearly means walking-around persons.

“You don’t count pregnant women twice,” he added.

Coming from a practicing Catholic and father of nine, that’s quite a statement.

So there’s a man whose moral compass clearly points in a pro-life direction (after all, in the quote above he refers to the unborn as “helpless human beings“), yet who flat-out pronounces that, to the best of his judgment, the word “persons” in the Constitution simply doesn’t include humans in the womb, and therefore such humans have no constitutional rights, period. Don’t like it? Tough.

Now, that’s impressive, as it evinces a capacity to separate personal preference from objective analysis, a capacity which, in my humble estimation, too many people lack completely, for when reason conflicts with emotion, the latter generally wins twelve times out of ten.

On another occasion, Justice Scalia said about communist Gregory Lee Johnson, who had torched an American flag in front of Dallas City Hall during an anti-Reagan demonstration in 1984, that if it had been up to him (Scalia), he “would have thrown this bearded, sandal-wearing flag burner into jail.” Yet to the chagrin of many conservatives, Scalia joined the Court’s opinion in Texas v. Johnson (1989) which affirmed Mr. Johnson’s First Amendment right to tear up and burn American flags to his heart’s content.

Again, there’s this neat split of “I wanted one thing, but the Constitution has willed another thing,” which IDs the splitter as a potentially independent thinker rather than a run-of-the-mill reactionary.

Of course, as I stated earlier, in many areas personal beliefs will coincide with conclusions derived from unprejudiced analysis. That the Constitution never reflects our views is even more unlikely than that it always does.

But a near-100% alignment should raise a red flag in terms of the degree to which the suspect is capable to check his or her personal views at the pier before diving into constitutional waters.

Related Post: Counting Pregnant Women (Pt. 2)

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  • Testazyk

    Well tuned and well turned!

    I think that most people who assert or deny “rights” based on the Constitution don’t really understand what it is supposed to be/do.

    • Cyberquill

      In fairness, the good document is a tad murky in places, precisely so as to allow for elastic interpretation. But then many people either deny the existence of such ambiguity altogether so they won’t have to acknowledge that readings other than their own might be equally valid, or they use the existence of any manifest degree of elasticity in the language as an open invitation to bend and stretch the text as they please.       

  • Cheri

    So, do you believe the Constitution to be an archaic document or a living one?

    Here on the Rancho, we are mighty glad the Second Amendment is still in the Constitution.
    Tomorrow, before the dinner, about 20 shooters will gather for the annual Turkey Shoot.

    Although we have about 100 wild turkeys that sit in the trees, on our gate, and poop all over our lawn and property, the Turkey Shoot participants will be shooting at targets, across our creek.

    It’s interesting how good everyone’s aim is after a Bloody Mary (or two).

    I don’t shoot because guns scare me. The Judge has several shotguns and several pistols. He justifies keeping these weapons because “Cheri, you never know when I might have to shoot a rattlesnake…”  Anyway, Happy Thanksgiving, Peter. I hope you are doing well.


    • Cyberquill

      Are you Peter? If not, why did you sign your comment with my name? 

      I believe the Constitution to be neither archaic nor “living” in the sense in which the term is commonly used. I simply consider it the law of the land. And in our legal system, any law—whether a constitution or a regular law—, in order to be valid, must be passed into law

      Laws are composed of language. Obviously, language changes, meaning changes, and connotations change over time. However, when a law was passed—any law—, it could have been passed only  based on what it meant at the time it was passed. Nothing more, nothing less, and nothing different was ever passed, ratified, and signed into law. 

      The so-called “living” Constitution is nothing more than a ploy to circumvent the conventional process of passing laws, namely by simply asserting that the meaning of the language has changed over time and that this new meaning has now miraculously assumed the status of law as if it had been passed into law the way a law is supposed to.  How clever. 

      Therefore, only a dead Constitution makes sense. Not archaic. Just dead. The moment it comes alive, you might as well toss it.

  • Jenny

    You’re going to hate my response:

    My objections to Justice Scalia have nothing to do with substance.

    When I read a Scalia opinion, at first it delights and then it grates (I’m talking about style).  What starts out smart (really smart!) almost always slides into snide.  It’s a turn-off.  I think he needs a ruthless editor.

    But, Cyberquill, I hear that Justice Scalia and Justice Ginzburg are good friends.  Isn’t that a beautiful idea?

    • Cyberquill

      Yes, they’re known to be close buddies, vacationing together and stuff. There’s a picture of Scalia and Ginsburg on a camel in front of a pyramid or something. 

      The last thing—nay, the mother of all last things—Scalia needs is an editor to desnide the Scalia-isms.  These  pieces, for instance, had me in stitches in the very places the editor of your dreams probably would have bowdlerized the heck out of.

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