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171



[Get Opera!]

THE LIBERTARIAN ENTERPRISE
Number 171, April 29, 2002
MINDIN' OTHER PEOPLES' BUSINESS

Overturn Roe? YES! (Rebuttal)

by W. James Antle III
jimantle@aol.com

Exclusive to TLE

Left-liberals have long been fond of pretending that the Constitution mandates their agenda; it appears that some libertarians entertain similar notions. Simply because some libertarians favor the abortion policy enshrined by Roe v. Wade does not mean this decision was in line with the Constitution.

Prior to 1973, it was never seriously argued that the abortion laws of all 50 states were unconstitutional or that the Constitution somehow required the trimester-based framework mandated by Roe v. Wade and clarified in subsequent Supreme Court rulings. There is no evidence from their writings that the Framers themselves intended this. If laws and constitutions can be interpreted to mean things that are different from what their authors intended, what is the purpose of written laws or constitutions?

The argument that the word "person" was never applied to an unborn child mirrors the Dred Scott argument that a black slave similarly had never been a legal "person." Americans have steadily progressed toward recognizing every human being as a person. We are human at birth and the physical organism that leaves the mother's womb at that time was never anything else. Mr. Westmiller has already established criteria for "personhood" that cannot truly applied to all human beings, including those who are born. Can a newly born infant actually exercise rights to free speech or to keep and bear arms? Of course not, except in a potential sense based on the infant's humanity -- and what the infant will inevitably mature into if its development is uninterrupted. It is historically false to suggest that slavery was forbidden by the courts; in fact, courts frequently upheld it.

Even if fetuses have no rights, are federal court decisions allowing them to be aborted a better guarantee of liberty than the constitutional division of power? Libertarian Roe supporters must say yes.

Mr. Westmiller makes an excellent point that the "overshadowing principle" of the Constitution and the Declaration of Independence is limited government and individual liberty. But this observation does not necessarily support the conclusions he draws from it. The Tenth Amendment enhances freedom, but not by limiting the powers it reserves to the states to those consistent with individual rights. It does so precisely by limiting the claims and jurisdiction of the federal government itself. While "states' rights" are never legitimate grounds for violating individual rights, decentralized political authority is more conducive to individual freedom than unlimited central government.

Increasing the scope of federal authority to protect individual rights reminds me of an argument I read a couple years ago that world government, if based on Hayekian principles, would actually increase individual freedom. I leave it to the readers to decide how likely it would be that a world government would be based on Hayekian principles and if a more centralized U.S. government would be any more Hayekian.

Others have scrutinized Roe's "fascinating discussion of history, medicine, philosophy and law," and found it wanting, but space does not permit such a detailed refutation here. Nevertheless, state laws did commonly criminalize abortion to protect fetal life irrespective of the "personhood" debate and embryology, not "quickening," supported this. But Mr. Westmiller himself concedes states were legalizing abortion already. A federal crusade against "womb slavery" is not necessary to legally permit abortion.

The abortion debate is ultimately separate from the debate over whether federal courts are allowed to strike down any federal law based more on political opinions than the actual Constitution. Judicial activism doesn't normally yield results Mr. Westmiller will favor, or that most libertarians would recognize as pro-freedom.



W. James Antle III is a senior writer for Enter Stage Right and staff columnist for several other webzines.


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