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Sunday, March 11, 2007
ARE IRAQ, AND AFGHANISTAN QUADMIRES FOR AL-QAIDA?
Should Schools Drug Test?
"To Drug Test, or Not to Drug Test? That is the Question." -- "Hamlet," Shakespeare (more or less)
Few Americans who are not lawyers will ever read the full opinion of a case decided by the United States Supreme Court. The Rockridge school district is considering establishing a policy that would require some students to be tested for illegal drugs. A number citizens claim such a policy will violate the "privacy rights" of the students tested.
The leading case on the issue is the Supreme Court 2002 decision in Board of Education v. Earls, 536 U.S. 822. I intend to set forth a number of passages from the opinion. I believe that it is good for citizens to see for themselves the depth of reasoning our court is capable of bringing to an issue.
In 1998, the school district of Tecumseh, Okla., adopted a drug testing policy, which required all students to consent to drug testing prior to participating in any extracurricular activity. Additionally students were required to submit to random drug testing while participating in that activity, and to be further tested at any time upon reasonable suspicion.
Not surprisingly, two students sued the School District, challenging the policy. They alleged that the policy violated their Fourth Amendment rights, and sought to have it struck down as "unconstitutional." They also argued that the district failed to identify a "special need" for testing students who participate in extracurricular activities, and that the "Drug Testing Policy neither addressed a proven problem nor promised to bring any benefit to students or the school."
The Supreme Court, in Earls, disagreed and held that the School's Drug Policy was "reasonable" and constitutional. "Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional."
The high court's reasoning to me appears unassailable. I reach that conclusion both as a lawyer and a parent. Whether a policy is reasonable is always a question of fact. Whether a course of action or a policy is reasonable always involves a balancing of the competing facts and interests.
"It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests."
Two excerpts from the court's opinion clearly show the "facts" or "governmental interests" that concerned the court. First, the court stated "(D)rug abuse is one of the most serious problems confronting our society today." In factual support of that statement, the court further note
"(T)]he number of 12th graders using any illicit drug increased from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders reporting they had used marijuana jumped from 41.7 percent to 49.0 percent during that same period."
The court, however, was entirely mindful of the fact that the Fourth Amendment's guarantees did in fact apply to children in school. "The Fourth Amendment to the United States Constitution protects `(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Searches by public school officials such as the collection of urine samples, implicate Fourth Amendment interests."
But the court distinguished between the amendment's application in the "criminal context," and its application in the "school context."
"In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, "is peculiarly related to criminal investigations" and may be unsuited to determining the reasonableness of administrative searches where the "Government seeks to prevent the development of hazardous conditions."
And the court explained the distinction.
"(I)n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion."
The court then proceeded to analyze the privacy interest involved in the context of the school environment. "(T)he subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster."
The court then stated: "The most significant element in this case is .. that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care."
It then elaborated "(W)hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake." Then the Court went to the heart of the issue.
"(T)he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use."
Some years ago, while I was still on the bench, I stopped to have lunch in downtown Rock Island. A widely respected attorney sat and visited. I told him I had just sent a probationer to prison after a number of unsuccessful attempts at drug treatment. I recall my friend telling me that once his clients became hooked on crack cocaine, "it became their God." I had by that time reached a similar conclusion. He put it more eloquently.
Three additional arguments are generally advanced in opposition to testing: (1) keeping kids drug free is a job for the parents; (2) there is a danger of a "false positives;" and (3) the expenditure of $35 per test is
a waste of funds that could better be utilized elsewhere.
Some years ago, when Alleman was about to begin its program of drug testing, I asked one of the dads what he thought. He replied, "It's a tool that's not available to me. I'd rather know sooner rather than later." I find that logic compelling. When kids spend more waking hours at school than at home, the argument that "it's a job solely for the parents" is less than convincing.
The argument about "false positives" is also unpersuasive. My sources tell me that "false positives" from hair samples are virtually nonexistent. Dave Van Landegen, the head of Rock Island County probation, advises that his office, which has used "preliminary" urine drops for years, solves that problem by immediately having more sophisticated testing done whenever the person dropping contends that the "preliminary test" is faulty.
Nor does the $35 cost argument wash. If the cost per test is indeed $35, then 100 tests cost $3,500. If just one child becomes drug addicted, the cost to send him for in-patient substance abuse treatment is $515 per day at a facility in Rockford. When it is understood that the average stay is 30 days, the cost of treating just one child is in excess of $15,000. When a delinquent child with a drug addiction is sent to St. Charles, taxpayers pay $153 per day.
From my point of view, that of a parent and a lawyer, it makes sense to test. My dad once told me, "If you never start smoking, you'll never have to quit." If just one child doesn't start using drugs, the school renders a great service to that family. In this balancing of "the right of privacy," versus "the health of a child," I would opt for the latter.
Copyright, 2007
John Donald O'Shea
Originally printed in the Moline Dispatch, February 11, 2007
Few Americans who are not lawyers will ever read the full opinion of a case decided by the United States Supreme Court. The Rockridge school district is considering establishing a policy that would require some students to be tested for illegal drugs. A number citizens claim such a policy will violate the "privacy rights" of the students tested.
The leading case on the issue is the Supreme Court 2002 decision in Board of Education v. Earls, 536 U.S. 822. I intend to set forth a number of passages from the opinion. I believe that it is good for citizens to see for themselves the depth of reasoning our court is capable of bringing to an issue.
In 1998, the school district of Tecumseh, Okla., adopted a drug testing policy, which required all students to consent to drug testing prior to participating in any extracurricular activity. Additionally students were required to submit to random drug testing while participating in that activity, and to be further tested at any time upon reasonable suspicion.
Not surprisingly, two students sued the School District, challenging the policy. They alleged that the policy violated their Fourth Amendment rights, and sought to have it struck down as "unconstitutional." They also argued that the district failed to identify a "special need" for testing students who participate in extracurricular activities, and that the "Drug Testing Policy neither addressed a proven problem nor promised to bring any benefit to students or the school."
The Supreme Court, in Earls, disagreed and held that the School's Drug Policy was "reasonable" and constitutional. "Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional."
The high court's reasoning to me appears unassailable. I reach that conclusion both as a lawyer and a parent. Whether a policy is reasonable is always a question of fact. Whether a course of action or a policy is reasonable always involves a balancing of the competing facts and interests.
"It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests."
Two excerpts from the court's opinion clearly show the "facts" or "governmental interests" that concerned the court. First, the court stated "(D)rug abuse is one of the most serious problems confronting our society today." In factual support of that statement, the court further note
"(T)]he number of 12th graders using any illicit drug increased from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders reporting they had used marijuana jumped from 41.7 percent to 49.0 percent during that same period."
The court, however, was entirely mindful of the fact that the Fourth Amendment's guarantees did in fact apply to children in school. "The Fourth Amendment to the United States Constitution protects `(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Searches by public school officials such as the collection of urine samples, implicate Fourth Amendment interests."
But the court distinguished between the amendment's application in the "criminal context," and its application in the "school context."
"In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, "is peculiarly related to criminal investigations" and may be unsuited to determining the reasonableness of administrative searches where the "Government seeks to prevent the development of hazardous conditions."
And the court explained the distinction.
"(I)n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion."
The court then proceeded to analyze the privacy interest involved in the context of the school environment. "(T)he subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster."
The court then stated: "The most significant element in this case is .. that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care."
It then elaborated "(W)hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake." Then the Court went to the heart of the issue.
"(T)he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use."
Some years ago, while I was still on the bench, I stopped to have lunch in downtown Rock Island. A widely respected attorney sat and visited. I told him I had just sent a probationer to prison after a number of unsuccessful attempts at drug treatment. I recall my friend telling me that once his clients became hooked on crack cocaine, "it became their God." I had by that time reached a similar conclusion. He put it more eloquently.
Three additional arguments are generally advanced in opposition to testing: (1) keeping kids drug free is a job for the parents; (2) there is a danger of a "false positives;" and (3) the expenditure of $35 per test is
a waste of funds that could better be utilized elsewhere.
Some years ago, when Alleman was about to begin its program of drug testing, I asked one of the dads what he thought. He replied, "It's a tool that's not available to me. I'd rather know sooner rather than later." I find that logic compelling. When kids spend more waking hours at school than at home, the argument that "it's a job solely for the parents" is less than convincing.
The argument about "false positives" is also unpersuasive. My sources tell me that "false positives" from hair samples are virtually nonexistent. Dave Van Landegen, the head of Rock Island County probation, advises that his office, which has used "preliminary" urine drops for years, solves that problem by immediately having more sophisticated testing done whenever the person dropping contends that the "preliminary test" is faulty.
Nor does the $35 cost argument wash. If the cost per test is indeed $35, then 100 tests cost $3,500. If just one child becomes drug addicted, the cost to send him for in-patient substance abuse treatment is $515 per day at a facility in Rockford. When it is understood that the average stay is 30 days, the cost of treating just one child is in excess of $15,000. When a delinquent child with a drug addiction is sent to St. Charles, taxpayers pay $153 per day.
From my point of view, that of a parent and a lawyer, it makes sense to test. My dad once told me, "If you never start smoking, you'll never have to quit." If just one child doesn't start using drugs, the school renders a great service to that family. In this balancing of "the right of privacy," versus "the health of a child," I would opt for the latter.
Copyright, 2007
John Donald O'Shea
Originally printed in the Moline Dispatch, February 11, 2007
Tuesday, January 16, 2007
irish thinker: "47,000,000 Dead and Counting"
THE LEGACY OF ROE V. WADE: 47,000,000 DEAD AND COUNTING
On January 22, 2007, America will “celebrate” the 24th anniversary of the U. S. Supreme Court’s decision in Roe v. Wade.
In our society, some wrongs are deemed “wrong in and of themselves.” Others, are deemed wrong only because they are prohibitied by a legislative enactment. Examples of acts that are deemed “wrong in and of themselves,” include murder, rape, and robbery. Distilling whiskey without paying a tax would be a typical example of a neutral act made wrong only because it is prohibited by law.
The bases for judging an act “wrong in and of itself” may come from several sources. Parents teach children that it is wrong to murder. Churches teach that murder violates God’s law. Schools teach that murder is inconsistent with living in a civilized society. An act is deemed “wrong in itself” because the act violates some natural or moral law, or other public principle deemed essential to living in a civilized society.
Locally, Sarah Kolb’s despicable murder and dismemberment of Adrianne Reynolds in January of 2005 serves to illustrate the preceding point. Obviously, there are statutes that make such acts of murder the gravest of crimes. But quite apart from any criminal statute, there is something about Kolb’s loathsome conduct which shocks the conscience of every feeling American. We judge these killings to be wrong in and of themselves - violations of natural law or moral law.
But what happens when our law is changed by our highest court so that an act previously deemed unlawful suddenly becomes lawful? When the act becomes legal, does it also become moral? That, of course, is what drives the furor behind the abortion debate. One segment of our society still sees abortion as wrong in and of itself. The other, either sees no moral wrong in the act, or reasons that since our Supreme Court has said Roe v. Wade that abortion is legal, that it must now also be moral.
Few Americans understand that the Roe Court did not consider the question of whether a fetus was a human person. The Court considered only the narrower issue of whether the fetus was a “Constitutional Person” -- a “person” within the meaning of the Fourteenth Amendment.
The relevant portion of the Fourteenth Amendment to the U. S. Constitution provides
The Plaintiff, “Jane Roe,” challenged the Constitutionality of a Texas statute that made it a crime to
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions;" that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. She claimed that the Texas statutes abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The court summarized Roe’s contentions, saying
The court continued
On the other side, the State of Texas argued that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. The Court conceded that,
The court held
To prove that the fetus was a human person, and that it’s “life was protected under the Fourteenth Amendment, Texas had detailed the well-known medical facts of fetal development. The court also made reference to two thousand years of conflicting opinions as to precisely when a fetus becomes a person.
But the personhood of the fetus was decided not as a “question of fact,” but only as a “question of law.” All medical and scientific evidence tending to show the fetus was a person was ignored as irrelevant to the question of whether the fetus was a “person within the meaning of the Fourteenth Amendment.” The Supreme Court, however, decided that matter strictly as a “question of law:”
It is very difficult to disagree with the Supreme Court’s conclusion that the men who passed the Fourteenth Amendment were not concerned with protecting fetuses. Those men, had just emerged from the horrors of the Civil War. They passed the Fourteen Amendment to insure that men of the black race, and others who later might find themselves similarly situated, could look to the Federal goverment in the event any state again tried to deprive them of life or liberty. The men who had saved the Union had no desire to fight a second civil war to vindicate the rights of the next group threatened by State action.
At the same time, however, the records of the debates clearly demonstrate that the the men who passed the Fourteenth Amendment had no notion they were guaranteeing that women would have a right to an abortion. That, too, was far from their thoughts.
In the view of many, the Roe decision is wrongfully decided. It construes just one sentence of the Fourteenth Amendment.
But, under the court’s holding, the mother’s right to “liberty” is construed expansively, while the fetus’s right to “life” is construed in the narrowest possible fashion. Two words, separated by a mere comma, are construed in diametrically different fashions. This is not consistent with any known legal rule of statutory construction. Had both words been construed narrowly, the Court would have held that abortion was not included within the word “liberty,” and fetal life was not included within the word “life.” Had both words been construed expansively, the mother would have been found to have “liberty” to have an abortion, but the fetus would have been found to have had a right to “life.” A balancing the equities would have then been required in each case.
Mr. Justice Scalia correctly points out a second serious difficulty with Roe’s logic. In America persons are deprived of life and liberty every day. Scalia argues that the Fourteenth Amendment doesn’t preclude imprisonment or capital punishment. It simply requires that before persons can be deprived “liberty” or “life,” they first be afforded “due process,” which since Magna Carta has meant a hearing “in accordance with the laws of the land.” He argues that Roe creates a “liberty” that cannot be curtailed even after a hearing consistent with due process. Such a hearing might take account of the actual personhood of the fetus, notwithstanding the fact that the men who wrote the Fourteenth Amendment never gave the issue a thought.
Those people who believe that abortion is a moral wrong, believe, that at a minimum, that abortion laws should be made based at least on medical and scientific imput. And when it comes to deciding whether fetal life should be protected, and the extent of the protection, they believe that in a democracy that that power should reside with the elected representatives people, rather than with nine judges. Statutes, unlike Constitutional holdings, can be amended as new facts emerge, and as society reevaluates its earlier views.
The Alan Guttmacher Institute compiles its own data from surveys of abortion providers. Its numbers are generally considered the most reliable in the industry. It has estimated that since the Roe decision in 1973 until 1998 there were 38,000,000 abortions in the United States. In 2006, it is estimated that 47,000,000 fetuses have now been aborted since Roe.
Some of those abortions were unquestionably done to protect the lives of the mothers, or to terminate pregnancies caused by rapes or incests. Most thinking Americans agree that such abortions “sound” in “self defense,” and therefore should be allowed.
But what about the rest? Were the lives of those who did not threaten the lives of their mothers, or who were not conceived in rape or incest worth any less than the lives of the children murdered in their schools? Is a fully formed child one day short of a natural birth any less a human person than a one day old newborn? Is it moral to kill a viable fetus for reasons of pure personal convenience?
As of News Year’s Day, our press tells us that the number of American soldiers killed in Iraq has now reached 3000. When the number of dead fetuses reaches 48,000,000 will anybody notice?
Originally published in Moline Dispatch, page A7, January 7, 2007.
Copyright 2007
John Donald O'Shea
On January 22, 2007, America will “celebrate” the 24th anniversary of the U. S. Supreme Court’s decision in Roe v. Wade.
In our society, some wrongs are deemed “wrong in and of themselves.” Others, are deemed wrong only because they are prohibitied by a legislative enactment. Examples of acts that are deemed “wrong in and of themselves,” include murder, rape, and robbery. Distilling whiskey without paying a tax would be a typical example of a neutral act made wrong only because it is prohibited by law.
The bases for judging an act “wrong in and of itself” may come from several sources. Parents teach children that it is wrong to murder. Churches teach that murder violates God’s law. Schools teach that murder is inconsistent with living in a civilized society. An act is deemed “wrong in itself” because the act violates some natural or moral law, or other public principle deemed essential to living in a civilized society.
Locally, Sarah Kolb’s despicable murder and dismemberment of Adrianne Reynolds in January of 2005 serves to illustrate the preceding point. Obviously, there are statutes that make such acts of murder the gravest of crimes. But quite apart from any criminal statute, there is something about Kolb’s loathsome conduct which shocks the conscience of every feeling American. We judge these killings to be wrong in and of themselves - violations of natural law or moral law.
But what happens when our law is changed by our highest court so that an act previously deemed unlawful suddenly becomes lawful? When the act becomes legal, does it also become moral? That, of course, is what drives the furor behind the abortion debate. One segment of our society still sees abortion as wrong in and of itself. The other, either sees no moral wrong in the act, or reasons that since our Supreme Court has said Roe v. Wade that abortion is legal, that it must now also be moral.
Few Americans understand that the Roe Court did not consider the question of whether a fetus was a human person. The Court considered only the narrower issue of whether the fetus was a “Constitutional Person” -- a “person” within the meaning of the Fourteenth Amendment.
"Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection."
The relevant portion of the Fourteenth Amendment to the U. S. Constitution provides
“... nor shall any State deprive any person of life, liberty, or property, without due process of the law; ....”
The Plaintiff, “Jane Roe,” challenged the Constitutionality of a Texas statute that made it a crime to
"procure an abortion," ... except with respect to "an abortion procured ... by medical advice for the purpose of saving the life of the mother."
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions;" that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. She claimed that the Texas statutes abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The court summarized Roe’s contentions, saying
“The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy.”
The court continued
“Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.”
On the other side, the State of Texas argued that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. The Court conceded that,
“If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.”
The court held
“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."
To prove that the fetus was a human person, and that it’s “life was protected under the Fourteenth Amendment, Texas had detailed the well-known medical facts of fetal development. The court also made reference to two thousand years of conflicting opinions as to precisely when a fetus becomes a person.
But the personhood of the fetus was decided not as a “question of fact,” but only as a “question of law.” All medical and scientific evidence tending to show the fetus was a person was ignored as irrelevant to the question of whether the fetus was a “person within the meaning of the Fourteenth Amendment.” The Supreme Court, however, decided that matter strictly as a “question of law:”
“... no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”
It is very difficult to disagree with the Supreme Court’s conclusion that the men who passed the Fourteenth Amendment were not concerned with protecting fetuses. Those men, had just emerged from the horrors of the Civil War. They passed the Fourteen Amendment to insure that men of the black race, and others who later might find themselves similarly situated, could look to the Federal goverment in the event any state again tried to deprive them of life or liberty. The men who had saved the Union had no desire to fight a second civil war to vindicate the rights of the next group threatened by State action.
At the same time, however, the records of the debates clearly demonstrate that the the men who passed the Fourteenth Amendment had no notion they were guaranteeing that women would have a right to an abortion. That, too, was far from their thoughts.
In the view of many, the Roe decision is wrongfully decided. It construes just one sentence of the Fourteenth Amendment.
“... nor shall any State deprive any person of life, liberty, or property, without due process of the law; ....”
But, under the court’s holding, the mother’s right to “liberty” is construed expansively, while the fetus’s right to “life” is construed in the narrowest possible fashion. Two words, separated by a mere comma, are construed in diametrically different fashions. This is not consistent with any known legal rule of statutory construction. Had both words been construed narrowly, the Court would have held that abortion was not included within the word “liberty,” and fetal life was not included within the word “life.” Had both words been construed expansively, the mother would have been found to have “liberty” to have an abortion, but the fetus would have been found to have had a right to “life.” A balancing the equities would have then been required in each case.
Mr. Justice Scalia correctly points out a second serious difficulty with Roe’s logic. In America persons are deprived of life and liberty every day. Scalia argues that the Fourteenth Amendment doesn’t preclude imprisonment or capital punishment. It simply requires that before persons can be deprived “liberty” or “life,” they first be afforded “due process,” which since Magna Carta has meant a hearing “in accordance with the laws of the land.” He argues that Roe creates a “liberty” that cannot be curtailed even after a hearing consistent with due process. Such a hearing might take account of the actual personhood of the fetus, notwithstanding the fact that the men who wrote the Fourteenth Amendment never gave the issue a thought.
Those people who believe that abortion is a moral wrong, believe, that at a minimum, that abortion laws should be made based at least on medical and scientific imput. And when it comes to deciding whether fetal life should be protected, and the extent of the protection, they believe that in a democracy that that power should reside with the elected representatives people, rather than with nine judges. Statutes, unlike Constitutional holdings, can be amended as new facts emerge, and as society reevaluates its earlier views.
The Alan Guttmacher Institute compiles its own data from surveys of abortion providers. Its numbers are generally considered the most reliable in the industry. It has estimated that since the Roe decision in 1973 until 1998 there were 38,000,000 abortions in the United States. In 2006, it is estimated that 47,000,000 fetuses have now been aborted since Roe.
Some of those abortions were unquestionably done to protect the lives of the mothers, or to terminate pregnancies caused by rapes or incests. Most thinking Americans agree that such abortions “sound” in “self defense,” and therefore should be allowed.
But what about the rest? Were the lives of those who did not threaten the lives of their mothers, or who were not conceived in rape or incest worth any less than the lives of the children murdered in their schools? Is a fully formed child one day short of a natural birth any less a human person than a one day old newborn? Is it moral to kill a viable fetus for reasons of pure personal convenience?
As of News Year’s Day, our press tells us that the number of American soldiers killed in Iraq has now reached 3000. When the number of dead fetuses reaches 48,000,000 will anybody notice?
Originally published in Moline Dispatch, page A7, January 7, 2007.
Copyright 2007
John Donald O'Shea
irish thinker: "Winning Means Keeping Your Enemy from Winning"
Winning a 21st Century War Means Keeping Your Enemy from Winning.
Most Americans equate winning a war with ``unconditional surrender.'' Our Civil War ended with Lee's unconditional surrender to Grant. World War II ended with Germany and Japan surrendering unconditionally. But there is a second way of winning wars, a way little understood by Americans.
Since World War II, wars have not ended with unconditional surrenders. Nevertheless, wars have been won. Modern wars are won by not losing, by outlasting your opponent, and by keeping your opponent from winning. Too many Americans have become impatient with the war in Iraq. Five years have passed, we appear to be bogged down with 3,000 dead, and we have not yet won an unconditional surrender. But by the alternate definition of victory, a definition subscribed to by our enemies, we are winning. As long as Saddam is out, and as long as the radical Islamists can't take over Iraq, we are winning.
But there is an obvious problem with this definition: our enemies can also claim they are winning. They still have their troops in the field, and America bleeds. They are winning because they fight on. But they know we are also winning. We are blocking them from controlling Iraq, its people, and its resources. And they are dying in greater numbers. Our enemies, however, are far less concerned with casualties. They think rather in terms of annihilation and survival. Two examples serve to explicate this point.
Mao Tse-tung, by word and deed, spelled out the theory of winning a war by outlasting your enemy. Of course, his first option was annihilation.
In On the Protracted War, Mao also recognized that when his army was not strong enough to achieve a total annihilation upon the enemy, stalemate was his ally.
Therefore, during times when his Red Army lacked the strength to crush his enemies, Mao's goal was twofold: to avoid annihilation, and to wear down his enemies until they quit.
The prime example of Mao's persistence was the Long March. In the late 1920s, Mao and his communist followers, in a desperate effort to avoid annihilation at the hands of Chiang Kai-shek's stronger army, set up their base at Chingkangshan, on the remote Hunan-Kiangsi border.
In October 1933 Chiang Kai-shek mobilized 900,000 troops to tightly encircle and destroy Mao's base. A year later, a million of Mao's supporters were dead. To prevent his complete annihilation, Mao led his Red Army out of Kiangsi, and embarked upon the Long March. It lasted a year, and covered more than 8,000 miles. (New York to Los Angeles is 2,780 miles!)
Of the 100,000 Red Army troops that fled from Kiangsi on Oct. 16, 1934, only 20,000 survived the march. The Red Army had marched an average of 24 miles per day for 253 days. They had fought a skirmish per day. They spent 15 days in pitched battles, crossed 18 mountain ranges, forded 24 rivers, occupied 62 cities, and broke through 10 enveloping armies.
Mao later stated the event's significance:
But what was the nature of that victory? Survival. Nothing more. The Red Army, had sustained losses of 80 percent, or 80,000 men. But Mao's communist movement survived. It survived to rebuild and eventually win.
The North Vietnamese used a similar strategy against America during the Vietnam War. In the words of Ho Chi Minh, ``You will kill ten of our men, and we will kill one of yours, and in the end it will be you who tire of it.'' The Vietnam War began in 1965. Three years later, our enemies undertook the Tet Offensive, a series of coordinated offensives, undertaken by battalions of the Viet Cong, and divisions of People's Army of North Vietnam.
During the Tet offensive 1,100 Americans and 2,300 South Vietnamese were killed. Between 25,000 and 45,000 Viet Cong and North Vietnamese were killed . The Viet Cong was effectively wiped out. The organization was preserved for propaganda purposes, but for all practical purposes, the Viet Cong had ceased to exist. Viet Cong formations, thereafter, were largely filled with North Vietnamese replacements. America had been victorious.
Nevertheless, the Tet offensive is generally seen as the turning point of the war. The American media turned against the government, and led the demand for the government to bring the troops home.
In his "special report on the war'' of Feb. 27, 1968, Walter Cronkite told the American public,
He told the American public that the U.S. was ``mired in a stalemate'' and called for a negotiated end to the conflict. A majority of the American public came to accept Cronkite's assessment, and America withdrew. Saigon fell. North Vienam won the war.
During the war, 58,209 American soldiers were killed. An estimated 600,000 Viet Cong and North Vietnamese soldiers were killed. Our enemies lost every major battle. But they won, because they had the will to perservere. We lost because we lacked the national will to win.
The Vietnam War provides a game plan for all our enemies: II you can stay the course, in the end, America will tire, quit and go home. Additionally, it taught our enemies how to use the American press against us.
Osama bin Laden also understands the lesson of Vietnam.
The people of the East do no think in terms of unconditional surrender, nor do they obsess upon the loss of 3,000 men. If we are going to be successful against people with such a mindset, we have but two choices: annihilate or outlast them.
In earlier wars, our nation had the will to win. At Gettysburg, 3,155 Union soldiers died. At Iwo Jima, 6,821 died. In World War II, 407,300 Americans were killed. In each case, we fought on until victory. We can only win, only by having a national will to win. To win we must annihilate the enemy, or fight on until the enemy quits. Make no mistake. If we redeploy to Okinawa, we lose. If we withdraw, we lose. And there will be consequences.
Originally published in Moline Dispatch, page A5, December 10, 2006.
Copyright 2006
John Donald O'Shea
Most Americans equate winning a war with ``unconditional surrender.'' Our Civil War ended with Lee's unconditional surrender to Grant. World War II ended with Germany and Japan surrendering unconditionally. But there is a second way of winning wars, a way little understood by Americans.
Since World War II, wars have not ended with unconditional surrenders. Nevertheless, wars have been won. Modern wars are won by not losing, by outlasting your opponent, and by keeping your opponent from winning. Too many Americans have become impatient with the war in Iraq. Five years have passed, we appear to be bogged down with 3,000 dead, and we have not yet won an unconditional surrender. But by the alternate definition of victory, a definition subscribed to by our enemies, we are winning. As long as Saddam is out, and as long as the radical Islamists can't take over Iraq, we are winning.
But there is an obvious problem with this definition: our enemies can also claim they are winning. They still have their troops in the field, and America bleeds. They are winning because they fight on. But they know we are also winning. We are blocking them from controlling Iraq, its people, and its resources. And they are dying in greater numbers. Our enemies, however, are far less concerned with casualties. They think rather in terms of annihilation and survival. Two examples serve to explicate this point.
Mao Tse-tung, by word and deed, spelled out the theory of winning a war by outlasting your enemy. Of course, his first option was annihilation.
"[T]he basic demands of war [are] the annihilation of the enemy, and the preservation of oneself. The aim of preserving oneselfis to annihilate the enemy, and to annihilate the enemy is in turn the most effective means of preserving oneself.''
In On the Protracted War, Mao also recognized that when his army was not strong enough to achieve a total annihilation upon the enemy, stalemate was his ally.
"In the stage of stalemate, the army should continue to utilize the elements of annihilation and attrition found in guerrilla and mobile warfare to further wear out the enemy on a large scale.''
Therefore, during times when his Red Army lacked the strength to crush his enemies, Mao's goal was twofold: to avoid annihilation, and to wear down his enemies until they quit.
The prime example of Mao's persistence was the Long March. In the late 1920s, Mao and his communist followers, in a desperate effort to avoid annihilation at the hands of Chiang Kai-shek's stronger army, set up their base at Chingkangshan, on the remote Hunan-Kiangsi border.
In October 1933 Chiang Kai-shek mobilized 900,000 troops to tightly encircle and destroy Mao's base. A year later, a million of Mao's supporters were dead. To prevent his complete annihilation, Mao led his Red Army out of Kiangsi, and embarked upon the Long March. It lasted a year, and covered more than 8,000 miles. (New York to Los Angeles is 2,780 miles!)
Of the 100,000 Red Army troops that fled from Kiangsi on Oct. 16, 1934, only 20,000 survived the march. The Red Army had marched an average of 24 miles per day for 253 days. They had fought a skirmish per day. They spent 15 days in pitched battles, crossed 18 mountain ranges, forded 24 rivers, occupied 62 cities, and broke through 10 enveloping armies.
Mao later stated the event's significance:
"The Long March is a manifesto. It proclaims to the world that the Red Army is an army of heroes ... It announces the bankruptcy of the encirclement ... by the imperialists.
"It declares to the approximately two hundred million people ... that the road of the Red Army leads to their liberation. Without the Long March, how could the broad masses have known so quickly that there are such great ideas in the world as are upheld by the Red Army?
"The Long March ... has sown many seeds in eleven provinces, which will sprout, bear fruit and yield a harvest in the future. To sum up, the Long March ended with our victory and the enemy's defeat.''
But what was the nature of that victory? Survival. Nothing more. The Red Army, had sustained losses of 80 percent, or 80,000 men. But Mao's communist movement survived. It survived to rebuild and eventually win.
The North Vietnamese used a similar strategy against America during the Vietnam War. In the words of Ho Chi Minh, ``You will kill ten of our men, and we will kill one of yours, and in the end it will be you who tire of it.'' The Vietnam War began in 1965. Three years later, our enemies undertook the Tet Offensive, a series of coordinated offensives, undertaken by battalions of the Viet Cong, and divisions of People's Army of North Vietnam.
During the Tet offensive 1,100 Americans and 2,300 South Vietnamese were killed. Between 25,000 and 45,000 Viet Cong and North Vietnamese were killed . The Viet Cong was effectively wiped out. The organization was preserved for propaganda purposes, but for all practical purposes, the Viet Cong had ceased to exist. Viet Cong formations, thereafter, were largely filled with North Vietnamese replacements. America had been victorious.
Nevertheless, the Tet offensive is generally seen as the turning point of the war. The American media turned against the government, and led the demand for the government to bring the troops home.
In his "special report on the war'' of Feb. 27, 1968, Walter Cronkite told the American public,
"We have been too often disappointed by the optimism of the American leaders ... to have faith any longer in the silver linings they find in the darkest cloud.''
He told the American public that the U.S. was ``mired in a stalemate'' and called for a negotiated end to the conflict. A majority of the American public came to accept Cronkite's assessment, and America withdrew. Saigon fell. North Vienam won the war.
During the war, 58,209 American soldiers were killed. An estimated 600,000 Viet Cong and North Vietnamese soldiers were killed. Our enemies lost every major battle. But they won, because they had the will to perservere. We lost because we lacked the national will to win.
The Vietnam War provides a game plan for all our enemies: II you can stay the course, in the end, America will tire, quit and go home. Additionally, it taught our enemies how to use the American press against us.
"I say to you: that we are in a battle, and that more than half of this battle is taking place in the battlefield of the media.'' Ayman al-Zawahiri
Osama bin Laden also understands the lesson of Vietnam.
"We had patience in our fighting with the Soviet Union with simple weapons for 10 years. We exhausted their economy, so they disappeared. We will not abandon our fight (against the Americans) until the weapons run out.''
The people of the East do no think in terms of unconditional surrender, nor do they obsess upon the loss of 3,000 men. If we are going to be successful against people with such a mindset, we have but two choices: annihilate or outlast them.
In earlier wars, our nation had the will to win. At Gettysburg, 3,155 Union soldiers died. At Iwo Jima, 6,821 died. In World War II, 407,300 Americans were killed. In each case, we fought on until victory. We can only win, only by having a national will to win. To win we must annihilate the enemy, or fight on until the enemy quits. Make no mistake. If we redeploy to Okinawa, we lose. If we withdraw, we lose. And there will be consequences.
Originally published in Moline Dispatch, page A5, December 10, 2006.
Copyright 2006
John Donald O'Shea
irish thinker: Heeding Churchill
IF THEIR MUST BE “NEGOTIATIONS” LET THEM BE BETWEEN THE REPUBLICANS AND THE DEMOCRATS
If the history of the Twentieth Century proves anything, it proves how dangerous intelligent, well meaning peace loving people can be.
The Treaty of Versailles which ended World War I contained crucial two clauses, which had they been enforced, would have prevented World War II. The first provision limited the German Army to 100,000 men. The second prohibited Germany from using conscription (a military draft) to rebuild its army.
In the years after World War I, France maintained an army of a hundred divisions, and built the Maginot Line. As long as the German Army did not exceed 100,000, France was safe.
When Hitler became the German Chancellor in 1933, he “tore up” the treaty, and reintroduced conscription for the purpose of building a new German Army. Hitler pleaded that Germany, as a great state, had a right to an army equal to that of France, or any other great state.
Winston Churchill saw the danger of that argument. Churchill argued that an armed democratic France posed no threat to a disarmed Germany, but that a rearmed Germany posed a mortal threat to France, and indeed, to all democratic states. But the well meaning intelligentsia of Britain, France and the United States saw equity in Hitler’s plea. A great state was entitled to a great army. The well meaning could draw no meaningful distinction between an armed but pacific France, and a Germany lead by the author of Mein Kampf - this notwithstanding the fact that Hitler put his plans on paper for the edification of anyone who cared to read them.
In Mien Kampf, Hitler wrote that man is a fighting animal, and therefore, that a nation is a community of fighting animals. Any living creature which ceases fighting for its existence, is doomed to extinction. The fighting capacity of a nation depends on its racial purity. Therefore, the German state had a duty to rid itself of its Jewish defilement. A race must fight, or rust and perish. The new greater Germany must gather within its boundaries all scattered German elements in Europe. Foreign policy must be unscrupulous. Germany must single out her enemies and destroy them one at a time, and not repeat the mistake of World War I of taking on all enemies simultaneously.
Yet notwithstanding all Hitler had said, notwithstanding Hitler’s reoccupation of the Rhineland in violation of treaty, notwithstanding his reintroduction of conscription, and notwithstanding his rape of Austria, when Hitler demanded dismemberment of Czechoslovakia in 1938, well meaning great men, like British Prime Minister Chamberlain, believed they could negotiate with Hitler and rely on his word.
Chamberlain wasn’t a weakling. But he had seen the carnage of World War I. He knew that Hitler had served in the German Army in World War I. Chamberlain, sadly, made the mistake of ignoring what Hitler said and did, and instead operated on the belief that because he thought a second World War was too horrible to image, that Hitler must think as he did. He ascribed his own rationality and his own values to Hitler .
Because Chamberlain was a gentleman, he operated under the self imposed delusion that Hitler must also be a gentleman. In Chamberlain’s own words,
On September 30, 1938, in return for yielding to Hitler’s demands relative to Czechoslovakia’s Sudetenland, Chamberlain came away with a piece of paper that bore Hitler’s signature, and told the world, “I believe it is piece in our time.” One year later, Germany invaded Poland, and World War II began.
Today well meaning Americans are again wishfully thinking. One recently wrote
Since 1948 Israel and America have sought peace in the Middle East. There have been negotiations ad nauseaum. Yet even now, the Palestine Liberation Organization Charter, and the Iranian President call for the elimination and utter destruction of Israel.
When Israel withdrew from Lebanon pursuant to U. N. Resolution, Hezbollah failed in every respect to comply with its obligations under the same Resolution. Indeed, rather than disarming, Hezbollah instead built up its store of rockets and weapons. Iran supplied, and Syria facilitated transport.
Iran signed the nuclear non proliferation treaty. Now Iran tells the whole world it will have nuclear weapons, and no one can stop it. Iran buys weapons from Russia with the condition that it will be the end user; instead the weapons are forwarded to Hezbollah.
The Iranian President denies the fact of the Holocaust. Other terrorists call from reimposition of the Caliphate from Persia to Spain. Lebanese Hezbollah fighters set up their rocket launchers among the civilian population, and fire into the civilian population of Israel.
Unlike Neville Chamberlain and many modern well meaning people, I don’t think it is possible to negotiate with these people. I don’t believe they would keep their word if they gave it. I don’t trust people who take innocent hostages and cut off their heads.
There is no point in Israel or American attempting to negotiate in good faith, if the other side is only using the negotiations as a stalling tactic to build up weapons systems that can do mortal harm to Israel or America. Winston Churchill’s dictum remains valid.
There is no merit in allowing North Korea or Iran to obtain nuclear weapons and delivery systems capable of destroying U. S. cities. Every day we negotiate, is one more day that they have to develop their weapons systems. America cannot tolerate nuclear weapons in the hands of the new would-be Hitlers.
While I don’t believe there can be meaningful negotiations with Iran or North Korea, I do not reject all negotiations. For starters, the leaders of the Republican and Democratic parties should sit together and negotiate, and reach consensus on what line North Korea and Iran cannot be permitted to cross. Then, that line should be drawn in the sand by the leaders of both our great parties for all to see. If North Korea or Iran cross that line, we should construe it as their declaration of war on America, and react in such a way, that no other would-be Hitlers will ever dare to cross the line again. Once it is clear to the petty Hitlers what the U. S. will not tolerate and what is not negotiable, then negotiations on other issue make some sense.
Originally published in the Moline Dispatch, August 31, 2006.
Copyright 2006
John Donald O'Shea
If the history of the Twentieth Century proves anything, it proves how dangerous intelligent, well meaning peace loving people can be.
The Treaty of Versailles which ended World War I contained crucial two clauses, which had they been enforced, would have prevented World War II. The first provision limited the German Army to 100,000 men. The second prohibited Germany from using conscription (a military draft) to rebuild its army.
In the years after World War I, France maintained an army of a hundred divisions, and built the Maginot Line. As long as the German Army did not exceed 100,000, France was safe.
When Hitler became the German Chancellor in 1933, he “tore up” the treaty, and reintroduced conscription for the purpose of building a new German Army. Hitler pleaded that Germany, as a great state, had a right to an army equal to that of France, or any other great state.
Winston Churchill saw the danger of that argument. Churchill argued that an armed democratic France posed no threat to a disarmed Germany, but that a rearmed Germany posed a mortal threat to France, and indeed, to all democratic states. But the well meaning intelligentsia of Britain, France and the United States saw equity in Hitler’s plea. A great state was entitled to a great army. The well meaning could draw no meaningful distinction between an armed but pacific France, and a Germany lead by the author of Mein Kampf - this notwithstanding the fact that Hitler put his plans on paper for the edification of anyone who cared to read them.
In Mien Kampf, Hitler wrote that man is a fighting animal, and therefore, that a nation is a community of fighting animals. Any living creature which ceases fighting for its existence, is doomed to extinction. The fighting capacity of a nation depends on its racial purity. Therefore, the German state had a duty to rid itself of its Jewish defilement. A race must fight, or rust and perish. The new greater Germany must gather within its boundaries all scattered German elements in Europe. Foreign policy must be unscrupulous. Germany must single out her enemies and destroy them one at a time, and not repeat the mistake of World War I of taking on all enemies simultaneously.
Yet notwithstanding all Hitler had said, notwithstanding Hitler’s reoccupation of the Rhineland in violation of treaty, notwithstanding his reintroduction of conscription, and notwithstanding his rape of Austria, when Hitler demanded dismemberment of Czechoslovakia in 1938, well meaning great men, like British Prime Minister Chamberlain, believed they could negotiate with Hitler and rely on his word.
Chamberlain wasn’t a weakling. But he had seen the carnage of World War I. He knew that Hitler had served in the German Army in World War I. Chamberlain, sadly, made the mistake of ignoring what Hitler said and did, and instead operated on the belief that because he thought a second World War was too horrible to image, that Hitler must think as he did. He ascribed his own rationality and his own values to Hitler .
Because Chamberlain was a gentleman, he operated under the self imposed delusion that Hitler must also be a gentleman. In Chamberlain’s own words,
“Hitler repeated to me with great earnestness what he had said already at Berchtesgaden, namely, that this was the last of his territorial ambitions in Europe ... In the second place, he said, again very earnestly, that he wanted to be friend’s with England and that if only this Sudeten question could be got out of the way of peace, he would gladly resume conversations.”
On September 30, 1938, in return for yielding to Hitler’s demands relative to Czechoslovakia’s Sudetenland, Chamberlain came away with a piece of paper that bore Hitler’s signature, and told the world, “I believe it is piece in our time.” One year later, Germany invaded Poland, and World War II began.
Today well meaning Americans are again wishfully thinking. One recently wrote
“It’s obvious that no real peace can be achieved in the Middle East without the cooperation of Syria and Iran, but both America and Israel governments have ruled out even talking with them. Those countries are not to be “rewarded” with diplomatic contact."
"As I understand it, sitting down at a conference table
with either county would somehow taint us, or concede them
a kind of “equal” status. It’s a special kind of diplomatic insanity;
the sort you might encounter among high school cliques.”
Since 1948 Israel and America have sought peace in the Middle East. There have been negotiations ad nauseaum. Yet even now, the Palestine Liberation Organization Charter, and the Iranian President call for the elimination and utter destruction of Israel.
When Israel withdrew from Lebanon pursuant to U. N. Resolution, Hezbollah failed in every respect to comply with its obligations under the same Resolution. Indeed, rather than disarming, Hezbollah instead built up its store of rockets and weapons. Iran supplied, and Syria facilitated transport.
Iran signed the nuclear non proliferation treaty. Now Iran tells the whole world it will have nuclear weapons, and no one can stop it. Iran buys weapons from Russia with the condition that it will be the end user; instead the weapons are forwarded to Hezbollah.
The Iranian President denies the fact of the Holocaust. Other terrorists call from reimposition of the Caliphate from Persia to Spain. Lebanese Hezbollah fighters set up their rocket launchers among the civilian population, and fire into the civilian population of Israel.
Unlike Neville Chamberlain and many modern well meaning people, I don’t think it is possible to negotiate with these people. I don’t believe they would keep their word if they gave it. I don’t trust people who take innocent hostages and cut off their heads.
There is no point in Israel or American attempting to negotiate in good faith, if the other side is only using the negotiations as a stalling tactic to build up weapons systems that can do mortal harm to Israel or America. Winston Churchill’s dictum remains valid.
“There is no merit in putting off a war for a year if, when it comes, it is a far worse war or one much harder to win.”
There is no merit in allowing North Korea or Iran to obtain nuclear weapons and delivery systems capable of destroying U. S. cities. Every day we negotiate, is one more day that they have to develop their weapons systems. America cannot tolerate nuclear weapons in the hands of the new would-be Hitlers.
While I don’t believe there can be meaningful negotiations with Iran or North Korea, I do not reject all negotiations. For starters, the leaders of the Republican and Democratic parties should sit together and negotiate, and reach consensus on what line North Korea and Iran cannot be permitted to cross. Then, that line should be drawn in the sand by the leaders of both our great parties for all to see. If North Korea or Iran cross that line, we should construe it as their declaration of war on America, and react in such a way, that no other would-be Hitlers will ever dare to cross the line again. Once it is clear to the petty Hitlers what the U. S. will not tolerate and what is not negotiable, then negotiations on other issue make some sense.
Originally published in the Moline Dispatch, August 31, 2006.
Copyright 2006
John Donald O'Shea
irish thinker: "Back Door Amendments to Constitution"
The Back Alley Method of Amending the U. S. Constitution and the Nomination of Judge Samuel Alito to the U.S. Supreme Court
The nomination of Samuel Alito to serve as Associate Justice of U. S. Supreme Court by President Bush has caused the great American press to raise all sorts of neat questions. Yet, the critical one they should be asking --- In the United States, how do we go about amending our U. S. Constitution? --- goes almost entirely unasked.
Most Civics teacher would tell you it’s a cumbersome process. Law professors would tell you that the procedures are found in Article V of the Constitution, and that the process begins whenever two-thirds of the members of both houses of Congress propose amendments, or, in the alternative, when the legislatures of two-thirds of the several states call for a convention for proposing amendments.
Congress then specifies one of two modes of ratification. Congress can provide the
amendment becomes part of the Constitution when either (a) it is ratified by the legislatures of three-fourths of the States, or (b) by Constitutional Conventions in three-fourths of the States. The fact that only 26 Amendments have passed since 1791 shows just how difficult it is to amend our Constitution.
But wait! There must be another way -- A way no where mentioned in the Constitution! Where, for example, in the Constitution can a woman look to find what the drafters of the document said about abortion? Where does a teenage sociopath, who murders everybody who crosses his path, locate his right not to be executed for his murders?
You can search the body of the Constitution, and the twenty six Amendments, until you croak. You will not find mention of a single reference to “abortion” anywhere therein. Similarly, no where will you find a hint that a murderer under the age of 18 can’t be executed.
The dirty little secret is this. There are five people, with an office in Washington D. C., who can get the job done for you. All you have to do is get to them and convince them that the Constitution needs a bit of tweaking! If they like your cause, they can do it for you.
“How can this be?” you say. “America is a democracy, or at least, a republic. In a “republic,” unless it’s a “republic” with a total population of nine citizens or less, five people shouldn’t be able to run the show. In a “democracy,” isn’t the majority supposed to rule? There are 300,000,000 Americans! If a majority of the American public, 150,000,001 Americans, has no power under Article V to amend the Constitution, how can five guys get the job done? How can the will of 5 prevail over the contrary desires of 150,000,001?
Just who are these “fabulous five?”
They’re a bunch of people who run around in funny looking black robes. We call the Justices of the U. S. Supreme Court. Actually, there are nine of them, but if you can get five on your side, you’re a winner.
A few years ago, in a case known as Roe v. Wade, a woman calling herself Jane Roe went to see the nine Justices. She wanted an abortion. But three-fourths of the States had laws prohibiting abortion, at least to some extent. Her state, Texas, made it a crime to procure an abortion, unless on medical advise an abortion was necessary to save the mother’s life.
Jane Roe had no chance of getting the Constitution amended under Article V. The legislatures of three-fourths of the states, rather than being in favor of abortion, were against it! In fact, they had made it a crime. Moreover, she could not find 150,000,001 Americans in favor of abortion to get the laws changed.
Jane Roe’s case was fraught with additional problems. She wanted the Court to find that she had a “constitutional right to an abortion.” But she had to ask for more than that. If her baby was a “person” within the meaning of the 14th Amendment, then it could not be deprived of its life without due process and equal protection. Not only did she demand the right to have total control over her own body; at the same time, she insisted that her baby had no rights at all.
Most Americans, at the time, thought viable fetus was a human being, and a “person” within the meaning of the 14th Amendment to the Constitution. Not so, said the majority of the court. A fetus is not a “person” in a “constitutional sense.” And since it is not a person, it has no rights.
A century before, the Court has held that Dred Scott and other black slaves were not “persons” within the meaning of the Constitution. As such, they had no rights. In the 1930, Hitler said the same of the Jews. By denying “personhood” to Jane Roes’ fetus, the Supreme Court, abortion on demand became possible.
The Fourteenth Amendment, passed in 1968, after the Civil War, states “nor shall any State deprive any person of life, liberty or property, without due process of the law; not deny to any person within its jurisdiction the equal protection of the laws.”
The words “life” and “liberty” appear one comma apart. The word “abortion” is nowhere found in the 14th Amendment. To prevail, Jane Roe needed an expansive definition of “liberty” to include “abortion.” Texas argued, that in ratifying the 14th Amendment, the Country was seeking to insure that the former black slaves would receive the same “due process” and “equal protection” accorded other person in the state. Texas argued that the States ratifying the 14th Amendment never for an instant thought that they were guarantying a woman a right to have an abortion.
Jane Roe, on the other hand, argued that the term “liberty” had evolved and broadened since Civil War days and now encompassed abortion. At the same time, she argued the term “life” (that of her child) had not broadened at all, and, indeed, should receive the most restrictive construction possible.
The Supreme Court easily could have said, both questions were matters for the people to decide. For example, there is no reason why if a majority of Americans felt a viable fetus was a “person” that Congress couldn’t pass statute making that the law. If later, the country concluded that a fetus was a person after just four months of development, then it could change the law.
Similarly, if the court had left to Congress the business of saying when a woman could have an abortion, the Congress could set the right to abortion in accordance with the wishes of a majority of 300,000,000 Americans. Today it could outlaw abortion. Tomorrow, it could allow abortions in the case of medical necessity. The day after, it could expand abortions to cover cases of rape or incest.
Instead, a majority of the court’s nine members took it upon themselves to find that “liberty” as understood in the Fourteenth Amendment, included the right to have an abortion. The fetus had no rights, beyond a duty to shut up and die.
In Roe v. Wade, because the issues were not mentioned in the words of the Constitution and Amendments thereto, the Court looked all over the place for guidance. It looked at pronouncements of the the American Medical Association. It looked to the ancient Greeks and Romans. It even looked to the ancient Persians. And in the end, it in effect proposed and ratified the 27 Amendment.
Today the doors of the Court are locked to every fetus in the land. Congress is barred from anyway fixing or amending the present law of abortion. A majority Americans have no vote on the issue.
Seven judges amended the Constitution -- without the least attempt to proceed according to Article V.
Today, there is a great battle shaping up in the Senate over the approval of President Bush’s nomination of Samuel Alito. . The pro abortion forces don’t want any Conservative judges. Conservative judges might allow the pro life forces to invoke the “five judge rule,” and amend the Constitution the same way Jane Roe got it done in front of liberal judges. Therefore, they threaten to filibuster.
The pro choice forces supporting the filibuster, pejoratively refer to a rule change to allow a majority vote on the President’s judicial nominees as the “nuclear option.” The Republicans are too inept and are too politically inarticulate to call the change what it really is: ”The majority rule option.”
The point is this: There is a “back alley” method of amending the Constitution. And both side have finally found that back alley.
All hysterics aside, what the American public should be focusing on here is this: By what right do five unelected judges -- whether liberals or conservatives -- pass ”unalterable” laws that can never be amended by a majority of the American public?
Published in the Moline Dispatch, page A5, November 13, 2005
Copyright 2005
John Donald O'shea
The nomination of Samuel Alito to serve as Associate Justice of U. S. Supreme Court by President Bush has caused the great American press to raise all sorts of neat questions. Yet, the critical one they should be asking --- In the United States, how do we go about amending our U. S. Constitution? --- goes almost entirely unasked.
Most Civics teacher would tell you it’s a cumbersome process. Law professors would tell you that the procedures are found in Article V of the Constitution, and that the process begins whenever two-thirds of the members of both houses of Congress propose amendments, or, in the alternative, when the legislatures of two-thirds of the several states call for a convention for proposing amendments.
Congress then specifies one of two modes of ratification. Congress can provide the
amendment becomes part of the Constitution when either (a) it is ratified by the legislatures of three-fourths of the States, or (b) by Constitutional Conventions in three-fourths of the States. The fact that only 26 Amendments have passed since 1791 shows just how difficult it is to amend our Constitution.
But wait! There must be another way -- A way no where mentioned in the Constitution! Where, for example, in the Constitution can a woman look to find what the drafters of the document said about abortion? Where does a teenage sociopath, who murders everybody who crosses his path, locate his right not to be executed for his murders?
You can search the body of the Constitution, and the twenty six Amendments, until you croak. You will not find mention of a single reference to “abortion” anywhere therein. Similarly, no where will you find a hint that a murderer under the age of 18 can’t be executed.
The dirty little secret is this. There are five people, with an office in Washington D. C., who can get the job done for you. All you have to do is get to them and convince them that the Constitution needs a bit of tweaking! If they like your cause, they can do it for you.
“How can this be?” you say. “America is a democracy, or at least, a republic. In a “republic,” unless it’s a “republic” with a total population of nine citizens or less, five people shouldn’t be able to run the show. In a “democracy,” isn’t the majority supposed to rule? There are 300,000,000 Americans! If a majority of the American public, 150,000,001 Americans, has no power under Article V to amend the Constitution, how can five guys get the job done? How can the will of 5 prevail over the contrary desires of 150,000,001?
Just who are these “fabulous five?”
They’re a bunch of people who run around in funny looking black robes. We call the Justices of the U. S. Supreme Court. Actually, there are nine of them, but if you can get five on your side, you’re a winner.
A few years ago, in a case known as Roe v. Wade, a woman calling herself Jane Roe went to see the nine Justices. She wanted an abortion. But three-fourths of the States had laws prohibiting abortion, at least to some extent. Her state, Texas, made it a crime to procure an abortion, unless on medical advise an abortion was necessary to save the mother’s life.
Jane Roe had no chance of getting the Constitution amended under Article V. The legislatures of three-fourths of the states, rather than being in favor of abortion, were against it! In fact, they had made it a crime. Moreover, she could not find 150,000,001 Americans in favor of abortion to get the laws changed.
Jane Roe’s case was fraught with additional problems. She wanted the Court to find that she had a “constitutional right to an abortion.” But she had to ask for more than that. If her baby was a “person” within the meaning of the 14th Amendment, then it could not be deprived of its life without due process and equal protection. Not only did she demand the right to have total control over her own body; at the same time, she insisted that her baby had no rights at all.
Most Americans, at the time, thought viable fetus was a human being, and a “person” within the meaning of the 14th Amendment to the Constitution. Not so, said the majority of the court. A fetus is not a “person” in a “constitutional sense.” And since it is not a person, it has no rights.
A century before, the Court has held that Dred Scott and other black slaves were not “persons” within the meaning of the Constitution. As such, they had no rights. In the 1930, Hitler said the same of the Jews. By denying “personhood” to Jane Roes’ fetus, the Supreme Court, abortion on demand became possible.
The Fourteenth Amendment, passed in 1968, after the Civil War, states “nor shall any State deprive any person of life, liberty or property, without due process of the law; not deny to any person within its jurisdiction the equal protection of the laws.”
The words “life” and “liberty” appear one comma apart. The word “abortion” is nowhere found in the 14th Amendment. To prevail, Jane Roe needed an expansive definition of “liberty” to include “abortion.” Texas argued, that in ratifying the 14th Amendment, the Country was seeking to insure that the former black slaves would receive the same “due process” and “equal protection” accorded other person in the state. Texas argued that the States ratifying the 14th Amendment never for an instant thought that they were guarantying a woman a right to have an abortion.
Jane Roe, on the other hand, argued that the term “liberty” had evolved and broadened since Civil War days and now encompassed abortion. At the same time, she argued the term “life” (that of her child) had not broadened at all, and, indeed, should receive the most restrictive construction possible.
The Supreme Court easily could have said, both questions were matters for the people to decide. For example, there is no reason why if a majority of Americans felt a viable fetus was a “person” that Congress couldn’t pass statute making that the law. If later, the country concluded that a fetus was a person after just four months of development, then it could change the law.
Similarly, if the court had left to Congress the business of saying when a woman could have an abortion, the Congress could set the right to abortion in accordance with the wishes of a majority of 300,000,000 Americans. Today it could outlaw abortion. Tomorrow, it could allow abortions in the case of medical necessity. The day after, it could expand abortions to cover cases of rape or incest.
Instead, a majority of the court’s nine members took it upon themselves to find that “liberty” as understood in the Fourteenth Amendment, included the right to have an abortion. The fetus had no rights, beyond a duty to shut up and die.
In Roe v. Wade, because the issues were not mentioned in the words of the Constitution and Amendments thereto, the Court looked all over the place for guidance. It looked at pronouncements of the the American Medical Association. It looked to the ancient Greeks and Romans. It even looked to the ancient Persians. And in the end, it in effect proposed and ratified the 27 Amendment.
Today the doors of the Court are locked to every fetus in the land. Congress is barred from anyway fixing or amending the present law of abortion. A majority Americans have no vote on the issue.
Seven judges amended the Constitution -- without the least attempt to proceed according to Article V.
Today, there is a great battle shaping up in the Senate over the approval of President Bush’s nomination of Samuel Alito. . The pro abortion forces don’t want any Conservative judges. Conservative judges might allow the pro life forces to invoke the “five judge rule,” and amend the Constitution the same way Jane Roe got it done in front of liberal judges. Therefore, they threaten to filibuster.
The pro choice forces supporting the filibuster, pejoratively refer to a rule change to allow a majority vote on the President’s judicial nominees as the “nuclear option.” The Republicans are too inept and are too politically inarticulate to call the change what it really is: ”The majority rule option.”
The point is this: There is a “back alley” method of amending the Constitution. And both side have finally found that back alley.
All hysterics aside, what the American public should be focusing on here is this: By what right do five unelected judges -- whether liberals or conservatives -- pass ”unalterable” laws that can never be amended by a majority of the American public?
Published in the Moline Dispatch, page A5, November 13, 2005
Copyright 2005
John Donald O'shea
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