I turned on my local Christian station this morning (99.3 FM in Austin) and ran smack into Dobson gearing up for a rant on abortion. I don’t remember how I knew that it was going to be about abortion, but I could tell from a phrase and the tone.
Sure enough, it turns out they were talking about this clip from “The View.” In this clip, John McCain says that Roe v Wade should be overturned so that abortion can once again be thrown as a matter to the states. McCain specifically says: “I want people who interpret the Constitution of the United States the way our founding fathers envisioned.” Whoopi Goldberg asked: “Should I be worried about being a slave, about being returned to slavery? Because certain things happened in the Constitution that you had to change.”
At this point, Dobson breaks in on the clip and berates Goldberg, saying that, of course it’s the CONSTITUTION that outlawed slavery. Specifically, the 13th amendment passed under the Lincoln administration. And so, foolish Whoopi, she should learn some history.
This obviously misses the point, by a very long way. First, McCain’s traditionalist appeal to the “what would the founding fathers do?” argument is very directly countered by Whoopi’s point that the founding fathers supported slavery, even going so far as to write into the constitution that a slave
‘s vote is worth 3/5 that of a regular person’s is worth 3/5 of a person for the purpose of census counts (Article 1, Section 2, Paragraph 3).* That Lincoln had to come along and fix this only emphasizes that point, which is that no, we DON’T always want to strictly go by “original intent.”
In addition, Dobson should turn the page to the next amendment, because that bears very directly on the kind of “states’ rights” argument that John McCain invokes to indicate that RvW should be overturned. Ratified shortly after the 13th, the 14th amendment says:
“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.”
Later Supreme Courts recognized this as overruling what was originally a states’ rights justification for slavery. Essentially, before the Civil War, individual states were free to allow or not allow slavery as they saw fit. The 14th amendment says that no, individual states are NOT allowed to override what has become the law of the land.
This was the same legal reasoning that was later used in the Roe v Wade decision. Previously, abortion was a matter that was left up to the states to allow or outlaw. Now it’s not. Nobody’s REQUIRED to provide abortions, but nobody can PREVENT you from having one, regardless of which state you live in. Despite what anti-abortion advocates would like you to think, this is not “legislating from the bench”; this is an ongoing process of exploring the legal ramifications of changes to the constitution, and this process started within a few years of the amendment’s passage.
Whoopi had a perfectly valid point in the above clip. Our current interpretation of what the 14th amendment means is based on the way that historical courts have ruled on the matter. And that’s perfectly constitutional. Unlike, say, the Bible, the Constitution isn’t supposed to “interpret itself” (hah); the Constitution SAYS that the courts have the power to indicate what is Constitutional. Whoopi’s point is that you can’t just go back to the way the founding fathers interpreted their laws, because it’s changed. One of those changes was disallowing prohibitions on abortion. Another was disallowing slavery. The same argument that invalidates one would also invalidate the other.
* Edited: The stricken out passage was a total brain fart. Obviously I wouldn’t have meant to claim that slaves had any vote before the Voting Rights Act. Thanks for bringing that to my attention, Tommy.