I know everyone's mad at Whoopi Goldberg for asking that question, but she was simply articulating a common fear that people have about strict constructionism, and it's a fear that right-wingers must address, particularly if we are going to assert that as a matter of law, it might be more appropriate if abortion were to be decided by the states, rather than by Federal overreach.

And it is a stickier issue than people like to admit.

What Whoopi is asking here:

is "how far do you want to turn back the hands of time?"

And whenever we talk about how we want the Constitution interpreted with the Founding Fathers' intentions factored in, we're going to get asked that question by the "living Constitution" crowd.

I think we should get asked that question by the "living Constitution" crowd.

Because the way I see is—as someone who has never set foot in a law school—the dirty little secret is that even strict constructionists wink at a certain kind of Federal "overreach," especially of the "Brown v. Board of Education" type. Because that same clique of crazy guys who wrote the original Constitution without spilling any of each other's blood managed to put together that "Declaration of Independence" thingie, which declared that "all men are created equal" [clearing the way for "all men and women are created equal," English being a Germanic language—and "man" being German for "one," the individual, gender aside: the "smallest minority"].

So strict constructionism has to do with intent, and we have a lot of supporting documentation on the Founding Fathers' intent—which was to create a new type of freedom for the individual, by limiting the power of the State. They had a vision, and it was a capitalist, individualistic vision.

The problem in comparing abortion "rights" with other types of rights is that in the particular case of abortion there are two individuals involved, and their rights/obligations have to be balanced against each other.

That is why abortion is problematic, and could well at some point be returned to the states to decide. It is also why gay marriage is inevitable, whether or not we go through a couple of decades of calling it "civil unions" or not. (Or, as I would prefer, call all legal unions "civil unions," and make them all legally equal. Then people could do the church part if they liked, and call 'em marriages if they liked. And no one would have to use the word "marriage" for anyone else's "civil union" if they didn't want to. And we could all stop arguing about that.)

Once one looks at the Constitution through the prism of the Declaration of Independence, it's easy to see that constructionism is not going to roll back civil rights (again—unless you see abortion as a civil right, which is all well and good, but you got there [and I am pro-choice] by rolling over the rights of the fetus).

This clip apparently upset a lot of people.* I thought it was fine; McCain came off very well, and in order to do that he didn't have to pretend not to be religious, or pretend that Constructionists didn't pose a danger to Roe v. Wade.

He just had to be himself, and he was funny. People always forget that McCain's funny, and it catches 'em off-guard.

* Including Allah, whose answer on abortion would be a Constitutional Amendment. Ouch. I'd much rather see that one determined by the states, if Roe v. Wade ever were ever to be overturned.

Posted by: Attila Girl at 11:22 AM | Comments (2) | Add Comment
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