Sunday, February 5, 2012

A Workable Plan

A recent letter to the Sun-News regarding Roe v. Wade displayed a misreading of the U.S. Constitution sufficiently common to be worth addressing.

The Constitution’s framers, reacting both to the inequities of rule by a remote monarchy and to the inefficiency of several years’ self-government under the Articles of Confederation, sought to guarantee freedom from tyranny while establishing a government strong enough to be effective. Therefore Congress has no powers that are not expressly or impliedly granted by the Constitution.

The letter quoted the Tenth Amendment: "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." It added that since the Constitution nowhere mentions the word "abortion," the power to regulate it is left to the states. "Pretty clear," it commented.

But the letter ignored the last four words of the Constitutional language it quoted: "or to the people." Women are people. It is at least possible that the Constitution, as amended during the 19th Century, protects a woman’s right to make critical decisions regarding her body. Does the Constitution leave such decisions to her or to the state legislature?

Many of the Constitutional freedoms we take for granted were initially guaranteed us only against Federal action -- not against abuse by the states.

After the Civil War, though, the 13th, 14th, and 15th Amendments were approved. The 14th specifically extended our protections against federal interference to cover interference by the states. That is, it prohibited states from interfering with individuals’ liberties in ways the federal government would not be allowed to do. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The Constitution is a rather well thought-out document stating general principles. It is not, like the Federal Register, a detailed list of specific regulations. Thus it speaks of "life, liberty, and the pursuit of happiness" but leaves to the courts the task of determining whether a particular claimed right – to drive a car, make love, smoke marijuana, or wear a burka or chador to high school – is protected strictly, somewhat, or not at all.
A couple of important examples come to mind. We take for granted that a state can’t forbid a black woman and a white man to marry each other, or prohibit a married couple from using contraceptives. Supreme Court cases established those points.

Fifty years ago, many states had laws forbidding miscegenation. Loving v. Virginia (1967) involved a married couple residing in Virginia. Richard Loving was white. Mildred Loving was of African and Rappahannock descent. A bunch of Virginia policemen burst into their home one night and arrested them. They’d violated Virginia’s Racial Integrity Act of 1924. The Supreme Court eventually held that Virginia could not forbid them from marrying because the right to marry was a fundamental freedom guaranteed all citizens by the Constitution.

(Interesting facts: as discussed in Pace v. Alabama (1883), adulterous sex was a misdemeanor, while interracial marital sex was a felony; and a mere eleven years ago, Alabama became the last state to take its anti-miscegenation statute off the books.).

Folks like that letter-writer might accurately complain that the Constitution nowhere mentions cohabitation by persons of different ethnicity.

They would be wrong to jump to the conclusion that the Constitution does not protect us from interference by a deluded and racist state government.

In 1965, the Court decided Griswold v. Connecticut. Again, one could accurately point out that the Constitution nowhere mentions contraceptives – and could inaccurately claim that the state could therefore forbid folks from using them.

The Court disagreed. It found that some measure of privacy with regard to one’s own body and marriage was implicitly guaranteed by the Constitution. As Justice Harlan had written in a dissenting opinion four years earlier, "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere in the Constitution."

Roe v. Wade is in the same category. One could reasonably argue that it was not a good decision. (I happen to think it was appropriate, but I recognize what a difficult subject abortion is.) One cannot simply point to the absence of the word "abortion" from the Constitution and claim, with any credibility, that therefore the decision is wrong.

I don’t say that the letter-writer can’t argue that Roe v. Wade was wrongly decided, as I think Citizens United was wrongly decided; but maybe he should bone up a little on the Constitution before lecturing us on it.

Such people (except where they happen to like a particular Supreme Court decision) see the Constitution as a document to be taken very literally, and they would restrict it to the specific topics it mentions expressly.
Nowhere does the Constitution mention that black children have the right to be educated in the same schools as white children. Few now would deny that right; but none of the framers tried to convince the populace in the 18th Century that such a right should be guaranteed. Nowhere does the Constitution mention people with physical handicaps, or expressly authorize the federal government to enact laws guaranteeing them access to buildings, but such laws exist and have been upheld as Constitutional.

The beauty of the Constitution is that its authors did remarkably well at setting up a system of checks and balances and concepts that could live and grow with the people. That’s a "wonderful and workable plan."

[ The column above appeared in the Las Cruces Sun-News this morning, Sunday, 5 February.]

Ironically, the page following this newspaper column contained another warning that the Constitutional rights discussed in the column are far from safe.

U.S. Representative Steve Pearce favored us with another example of his fear-mongering.

His column, entitled "Obama destroys conscience protections," began:

President Obama and his cabinet have infringed upon a basic private right in their newest sweeping federal mandate.

Strong language. I wondered what "basic private right" and "sweeping federal mandate" he was going on about, so I read on. It took many paragraphs of feverish rhetoric to get a clue.  I did learn from his second paragraph that:

This violation of the longstanding concept of conscience protection breaches the safeguards for personal religious and moral convicitons that have been in place since our founding.

Clearly Mr. Pearce had never been taught what I’d learned in grade school and re-learned as a newspaper reporter and a lawyer: in a topic sentence or paragraph, give the reader a clear sense of who did what when. Tell us what the piece of writing is about.

In a recent op-ed in USA Today, Timothy Dolan, Archbishop of New York, wrote that this latest demand "cuts against the grain of what it means to be an American."

I believe the Archbishop hit the nail on the head.

Okay.   A Catholic Archbishop agreees with Mr. Pearce, and President Obama is un-American -- for some vile misconduct Mr. Pearce has not yet identified, after four paragraphs.

Health and Human Services Secretary Kathleen Sebelius is aligning against the constitutional protection of one's conscience and religious beliefs.

Sounds serious!  Five paragraphs of ominous accusations, but no content yet.

We have the First Amendment to allow everyone to practice whatever faith in whatever manner without the government dictating the God that they worship.

A reasonably truthful sentence (though not fully correct in its grammar).  Mr. Pearce and I agree.  As a reader, I'm meant to infer from this that Mr. Pearce must be right about whatever it is he will eventually say.

As the National Association of Evangelicals stated in response to this edict, "No government has the right to compel its citizens to violate their conscience."

Mrs. Worthington, my fifth grade teacher, would surely have circled "this edict" and written "REF" in red ink, to remind me that pronouns such as "this" should have an antecedent.   But Mr. Pearce has used seven paragraphs without deigning to tell us what the "sweeping federal mandate" or "edict" might be.  He has, however, managed to cue Catholics and Evangelicals to the fact that he must be right about whatever it is, because other learned authorities agree with him.

I began to wonder if Mr. Pearce was ever going to identify this dastardly act of the Obama administration that had him so worked up. It sounded as if it was pretty bad, and would have church-doors locked instantly and guarded by Atheist Patrols.

President Obama is dismissing our Constitution, and forcing religious organizations to violate their conscience by adopting the agenda of the administration's favored special interests.

This is an abhorrent assualt on our fundamental liberties, including our right to live the way our faith prescribes. 

The goverrnment is interfering where it has absolutely no place -- in our personal, spiritual lives.

Three more paragraphs.  No further clue what it is that Obama and Sebelius have done.  Three more abstract accusations of very bad conduct.  No reasoned argument.   But if I'm a casual reader, I now clearly understand that Mr. Pearce is out there protecting my fundamental rights against Mr. Obama's vile efforts to enslave me.

The administration has already inserted federal bureaucrats between you and your doctor.  Now, this new overreach pushed us to a truly dangerous tipping point where a federal agency is forcing people of faith to change their interpretations of the Bible and other religious canons.


So offended are many religious organizations that the Archodiocesian [sic] Healthcare and Bioethics Committee of Milwaukee submitted a comment to HHS in September that these newest requirements could be seen as "a deliberate strategy by the federal gvoernment to abolish the influence of the Catholic Church in civil society."

Secretary Sibelius justifies this assault on our freedom of religion by stating that this requirement for religious organizations to cover all FDA-approved contraceptives is the policy in a majority of states."

Finally our first clue as to the subject of the diatribe:  something to do with contraceptives.   Of course, the vagueness of "religious organizations to cover all FDA-approved contraceptives" isn't real helpful.  Are priests going to be required to preach that contraceptives are wonderful?  Or are Catholic hospitals, which treat people of all faiths and receive public dollars for doing so, going to be required to provide all legal forms of health care?  Or are huge health insurance companies going to have to cover all legal prescriptions, including contraceptives?

In any case, it's a far cry from what the rhetoric in the preceding twelve paragraphs had suggested, that individuals were no longer to be allowed to practice their chosen religions.

Mr. Pearce went on through ten more paragraphs to accuse the administration of "dangerously interfering with people of all faiths and their God," of "a gross violations of our rights as a free people and as people of faith," of "discriminat[ing] against anyone for their [sic] beliefs," and of "ignor[ing] the Constitution."  One somewhat disconnected paragraph even reads:

The Constitution ensures the protections of thje rule of law for the poor and the disadvantaged.  The rich and well-connected always get their way.

If I knew these people, I'd love to ask the Pearce hireling who wrote this what the connection is.  As far as I can tell, big health insurance companies are very well connected.  Poor folks and lower-middle-class folks who might need their insurers to cover their medical needs aren't so well-conncected.  I honestly don't get it.  I can only assume that Pearce and his folks will say anything that sounds good, even if it's wholly contradicted by their actions.  

In his final paragraph, Mr. Pearce finally did let on what he was talking about: 

On Jan. 20, Health and Human Services Secretary Kathleen Sebelius announced that the federal government would require all health insurance plans to cover sterilization and contraceptives, including abortion-inducing drugs, and that virtually all employers, including hospitals, schools and privatge universities with a religious affiliation, would have one year to comply with the new rule.

In short, people who depend on large insurance companies for their health insurance will not have to live according to the religious or moralistic precepts of those who own or run the large health insurance companies.  Mr. Pearce’s wealthy constituents can use condoms or have legal abortions at will, and poor folks will have the same choice.

A reasonable op-ed piece would have begun with that description of what the federal government had announced, then gone on to provide reasoned argument concerning that announcement.  But reasoned argument is never Mr. Pearce's first choice.  There may well be credible arguments that the action is too sweeping; but Mr. Pearce offers none.

Clearly his purpose was more fear-mongering rhetoric and an attempt to convince Catholics in Doña Ana County that religious life as they knew it would be over if they voted for Obama this year. He larded the piece with rhetoric and left the morsel of meat for the end, knowing few readers would persevere that far but all would read his first few paragraphs. (He’d probably have preferred it if some employee of the Sun-News had carelessly cut the last paragraph, so that people wouldn’t be let down by reading the actual "subject" of his harangue.)

Surveys show that many Catholics use birth control. To them, the Church’s stand on contraceptives is one of those quirks we forgive in those we love. Many Catholics love the Church but need contraceptives. They remain devoted Catholics. I’d be willing to bet that in Doña Ana County many Catholics use birth control – and that of the ones who choose not to use it, a fair proportion wouldn’t claim any right to dictate whether or not other folks use them. It’s a personal choice. A personal choice the Constitution respects and protects. And a personal choice most folks are content to let others make for themselves. Even poor or lower middle-class others.

To me, at first glance, Secretary Sebelius's announcement seems reasonable.  I lack sufficient information to assess it, as I would have to do if I wrote a column about it or were a legislator voting on a measure related to it.  Unfortunately, Mr. Pearce provides no such information.

If I read Pearce’s piece without his name attached, I’d be laughing; but we let this gentleman represent us in making decisions that affect our lives and will affect our grandchildren’s future. That ain’t funny.

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