Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10.2 9/18/84; site cybvax0.UUCP Path: utzoo!linus!philabs!cmcl2!seismo!harvard!think!mit-eddie!cybvax0!mrh From: mrh@cybvax0.UUCP (Mike Huybensz) Newsgroups: net.abortion Subject: Re: Abortion and the Constitution Message-ID: <708@cybvax0.UUCP> Date: Tue, 27-Aug-85 10:50:41 EDT Article-I.D.: cybvax0.708 Posted: Tue Aug 27 10:50:41 1985 Date-Received: Thu, 29-Aug-85 22:47:43 EDT References: <597@mit-vax.UUCP> <931@bunker.UUCP> <688@cybvax0.UUCP> <887@brl-tgr.ARPA> <698@cybvax0.UUCP> <1000@brl-tgr.ARPA> Reply-To: mrh@cybvax0.UUCP (Mike Huybensz) Organization: Cybermation, Inc., Cambridge, MA Lines: 80 In article <1000@brl-tgr.ARPA> matt@brl-tgr.ARPA (Matthew Rosenblatt ) writes: > > The constitution is too vague and general for much day-to-day legal work. > > A body of interpretation and application to specifics has been built > > to fulfill real-life needs. Roe vs. Wade is a part of and supported by > > this body. [MIKE HUYBENSZ] > > Right, except for the last phrase of the last sentence. I agree with the > dissent, which found that even the elaborate right-to-privacy structure > built up since Louis Brandeis's 1890 article in the Harvard Law Review > did not support the step the majority was taking in establishing the > right to abort. Because of its size, elaboration, and need to resolve conflicting demands of the constitution, constitutional law can support quite a few different points of view. Unanimous Supreme Court decisions are rare, which means that dissents are frequent. Dissents have no official legal standing, yet are typically legal arguments which also depend on the constitution for support. > Obviously, as a pro-choicer, you disagree with the conclusion of the dissent. > I knew that. But if you agree that the Constitution is silent on abortion, > and yet believe that the States have limited power to regulate abortion, > there must be a point in the dissent's argument where you and the dissenters > part company. Where is that point? And why do you part company with them? Unfortunately, I don't have copies of the majority opinion and the dissent. I read them several years ago. If you would like to mail me copies (via net or US mail; my address is in the header), I'll be happy to detail why I prefer the majority opinion. > > If people want to argue on a proscriptive basis, they need no understanding > > of present laws. However, if they want to argue on a constitutional > > basis, they need to know the cases that determined the interpretation > > of the constitution that was applied to the laws. [MIKE HUYBENSZ] > > I think you mean a "prescriptive" basis, and I have no quarrel with you > here. You're right, I had intended prescriptive. Though both sides are actually making proscriptive arguments: the states shall not prevent abortions, or women shall not abort. There we quarrel. > > Essentially, what we have are arguments suited to two of the branches of our > > government. Proscriptive arguments are suited to the legislative branch, > > which could enact federal laws or constitutional ammendments to make a clear > > statement. Constitutional arguments are suited to the judicial branch. > > [MIKE HUYBENSZ] > > Right. The prescriptive arguments say what their proponents believe the > law (and Constitution) SHOULD BE, appealing to some moral code, whether > that code is "do what you want if you're not hurting others" or the Bible > or "Truth-Justice-Freedom-Ivy-&-The American Way." Prescriptive arguments > we've been seeing on this net, and prescriptive arguments we'll be seeing. > What I'd like to see are some legal and Constitutional arguments by people > who know what they're talking about (like you), and the more people on the > net who fit that category, the better. There is a need for both prescriptive and constitutional arguments. After all, the constitution is subject to our prescriptions. For example, we wouldn't need to know whether or not the constitution prohibits or allows abortion in order to enact an ammendment to make it clear. > That's why I urge people to read the law. Knowledge of the law can certainly be beneficial, but it should not be a requirement (except for making legal arguments.) Requiring knowledge of the law for prescription provides two disservices: it disenfranchises many, and it may prejudice others. Of course, it may also have benefits, such as explaining the context more fully and improving understanding of the goals of the laws. > Remember, abortion arguments don't belong in net.legal (to which > I don't subscribe): net.legal flames every time an abortion article > accidentally reaches their net. So legal and Constitutional arguments > on that subject will have to take place here, if at all. I'm happy to agree with you here. -- Mike Huybensz ...decvax!genrad!mit-eddie!cybvax0!mrh