Al's Opinions

We often speak and write with glowing praise about the wise men who drafted our federal constitution. It is said to be a wonderful document, 220 years old, and a model for every country that has adopted a democratic form of government since 1787. All that said, I believe that there are some features that our constitution lacks. The framers were not foresighted enough to see every possibility.

For starters, the enforcement mechanism is weak. "Congress shall make no law ..." etc., regarding freedom of speech, establishment of a religion, etc. Well, suppose Congress does make such a law? What then?

The framers supposed that the President would use the power of the veto to prevent any such unconstitutional law from taking effect. We've seen how well that idea works in practice.

Chief Justice John Marshall discovered (or invented?) another way of stopping unconstitutional laws from taking effect. He asserted the principle of judicial review of laws and other acts of the legislative and executive branches of government. That has worked a little better, but it's not perfect.

Thomas Jefferson (a dangerous radical if there ever was one) had the idea that the people would demonstrate and rise in revolt against an unconstitutional or otherwise unjust law. He argued that there should be such a revolution every generation or so and that the new constitution would have a rather short life span. That idea went nowhere, also.

Unlike the constitutional courts in some countries, our own Supreme Court does not review legislation until someone has brought a lawsuit against it. An obviously unconstitutionl law or act of a President can stand until someone brings a suit to the Court and the Court decides to strike down the act or law. This method of enforcing the constitution is limited by the requirement that the person bringing the suit to the Court has "standing," or can show that he or she has been harmed because of the law.

In recent times the Court has made it very difficult to bring such suits forward because of the "standing" requirement. Recently an action by the President that involves awarding federal money to certain religious groups was challenged in court by a group supported by the ACLU. A federal court ordered the suit dismissed because the plaintiffs lacked "standing." The plaintiffs were arguing that some of their tax money was going to support religious organizations and that such support violates the First Amendment proscription on the establishment of a religion. I suppose that the court reasoned that simply having one's tax money spent on supporting a religion that one doesn't believe in does not constitute harm. It's like arguing that my tax money shouldn't be spent on a wrong war in Iraq. Once you've paid your taxes, the money isn't yours any more and what the government does with it is not subject to your beliefs.

I also disagree with the decision of the President to spend federal money in supporting his favorite faith-based groups. Even though Congress hasn't established a religion, this spending clearly favors certain religious groups over others. Perhaps the suit should have been initiated by a religious group that does not share in the President's largesse.

The conclusion is that the existing mechanisms of enforcing the constitution do not always work. Is it time for one of Thomas Jefferson's revolutions?

Labels: ACLU, american government, Bush Administration, faith-based initiative, John Marshall, judicial review, Thomas Jefferson

By now every blogger from here to St. Johns in Newfoundland will be having something to say about the decision yesterday by the Supreme Court which allowed a federal law, enacted four years ago and which prohibits the procedure popularly called "partial birth" abortion from being performed. There is no explicit exception in the law. However, the Supreme Court decided that the procedure could be performed if a physician or a patient proved to a federal judge that the woman's health would be in danger unless the banned procedure could be carried out. That possibility of judicial review of extreme cases allowed some of the justices to approve the law and to decide that it did not impose an "undue burden" on a woman who needed an abortion.

The decision represents the views of a majority of the Court and of the President that the "right to life" of an embryo or a fetus equals the "right to life" and health of a pregnant woman or a patient who might be cured by the results of research on embryonic stem cells. This equality is based on a religious belief or superstition.

We should congratulate ourselves on the circumstance that our President and the majority of the Court do not subscribe to the beliefs of Jehovah's Witnesses. These people believe that we humans should make do with the organs that God has given us and should not defile the body with organ transplants, including blood transfusions.

The issue of whether abortion is a natural right or a mortal sin is one that has bedeviled politicians for decades. Recall that politics has been defined as the "art of the possible." When dealing with such a contentious issue, politicians try diplomacy. They try to defuse the issue by adopting measures that are grudgingly acceptable to both sides. The law in question is just such an attempt at a compromise. Congress chose a procedure that is used only in certain late-term abortions. Some gynecological experts contend that there are other procedures that can be used and that the particular one forbidden by the law isn't ever really necessary. Others contend that in certain circumstances the procedure poses the least risk to the woman's health and ability to have other children later.

Some of us are outraged that Congress would enact a law banning a particular medical procedure. What moral authority do 535 elected politicians have to dictate to the medical profession on such a matter? Others are overjoyed that at last there is one procedure used to perform abortions that has been outlawed. They see more of the same in the future.

What is a mere politician to do in this situation? Neither side accepts the compromise offered so far. I think we have to go back to the days of prohibition, particularly local option, to find a model. In the 1950's (and perhaps today, also) some States had provisions for local communities or counties to ban the sale of alcoholic beverages. A friend once recounted the experience in one county of Tennessee. At one time the county voters approved the legal sale of beer, wine, and whisky. After a year or two, the ministers started a program to persuade the voters to vote "dry." My friend noticed that the bootleggers gave quiet support to the ministers. Finally, the public was convinced, and the county voted "dry" in the next election. The ministers were happy because they had improved the moral climate of the county. The bootleggers were happy because they were back in business. Then the reformers started their campaign to put the bootleggers out of business by getting the voters to vote "wet." And so it went, election to election.

Another friend told me of making a trip to a city in Oklahoma, probably Tulsa. This friend knew that Oklahoma was a "dry" State, but he wanted to find a speak-easy. He asked a policeman. The policeman obligingly pointed one out for him. My friend asked if the policeman would like to join him in a drink. The policeman politely declined. Another friend told me that in the Christmas shopping season the newspapers ran large ads with the prices of certain favorite wines and whisky and brandy, the purpose being that the public would not be overcharged by their favorite bootleggers.

Perhaps that is the way to solve the abortion conundrum. Make it illegal, but don't enforce the law. The fundies will be happy that abortion is illegal. Fathers with sometimes wayward daughters will know that safe abortions are available. The political controversy will go away.

Labels: abortion, judicial review, Oklahoma, political compromise, prohibition, Tennessee, Tulsa