Wednesday, January 23, 2013

Roe v. Wade and 40 Years of Adverse Possession

The controversial landmark 1973 Roe v. Wade decision on abortion rights turned 40 years old yesterday. That's long enough to establish adverse possession.

The core holding was on a right of personal privacy:
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Nowhere will you find right of privacy or abortion mentioned in the U.S. Constitution. However, that is an unconstitutional argument against the asserted right, as the plain language of the Ninth Amendment makes clear:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Whether or not you agree with the decision, certain facts must be admitted. No Justice was impeached for the holding exceeding the Supreme Court's authority. No Constitutional Amendment has passed either House or Senate by the requisite two-thirds vote, no Constitutional Convention has been called, and no President has put enough votes on the Court to overturn it, although several could have.

Several words contained in the Fourteenth Amendment are worth looking at too on this anniversary:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Those phrases - privileges, immunities, life, liberty, property, due process, equal protection - are susceptible to being read narrowly or broadly. "Separate but equal" is a notorious example of a narrow reading, the law of the land supporting Jim Crow segregation from 1896 to 1954. Of course, that doctrine contained the seeds of its own destruction in the qualification "but equal."

It is the shame of social conservative Republicans that they have for 40 years not embraced the broad reading. One case they didn't like, which they could have distinguished based on competing life and liberty interests. That unnecessarily ceded libertarianism and egalitarianism to the Democratic Party.

Surely a government that can be kept out of the bedroom by the Fourteenth Amendment can also be kept out of the pocketbook. Property is listed right alongside life and liberty. The equal protection principle can be applied to equalizing tax rates. The Supreme Court could be debating how levying income tax on 53% of the people while exempting 47% is unequal, or how the federal government can't be granting privileges and immunities to some citizens and not to all.

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