Equal Protection- Part II

[The Strict Constructionists… or the Illiterate Destructionists?]

May 15, 2007


When it comes to the U.S. Constitution, I feel like one of the last of a dying breed; the “strict constructionist.” I treat the document like religious people treat the Bible. I am of the “old fashioned” belief that changing the Constitution requires a two-thirds referendum by the states. I’m not a lawyer and I’m probably biased. Because of my ignorance and inexperience with “case law,” I don’t trust the concept at all and I actually have come to hate it. Judges have screwed up and continue to screw up “case law” beyond the average citizen’s wildest imagination.

For example, whether or not I believe in the right of a woman to have an abortion, Republican Supreme Court “Justices” (an oxymoron) proudly proclaiming they are “Pro-Life” before they read the Constitution is Constitutional heresy. Similarly judges proclaiming that they are “Pro-Choice” before reading the Constitution are equally unqualified to be “Justices.”

A liberal Supreme Court overreaches as it did with “Affirmative Action” (appointing unqualified minorities over qualified majority members) or with Roe vs. Wade (late term abortions because of a “bad hair day”), it’s rightfully called “reconstruction,” but when Conservatives violate the hell out of the Constitution (illegal search, seizure, surveillance, torture of prisoners, withholding counsel…) it’s automatically called “strict construction.”

It takes a rather honest person to look at the Constitution and ask “Where does the Constitution talk about abortion?” The same guarantee of “life, liberty and the pursuit of happiness” that argues for the life of the unborn fetus argues for the life of the mother. Thus, the Constitution guarantees that the life of the “unborn” fetus can be sacrificed to save the mother. Thus, no state has the right to outlaw abortion altogether. Moslems believe that the fetus is not a living being until 100 days. Other religions believe in similar “schedules.” Some religions believe that “life” begins with conception or even before.

There is a theory that God has a very large closet, and, in that closet he has billions of souls. Each time conception occurs, God takes a soul from this closet and implants it into the “fetus.” Another theory states that when gametes meet, that a “mind” or “consciousness” or “soul” begins to develop, that by a certain time, say “100 days,” it officially becomes a “soul.” Other religions like Christianity long believed that the soul was not “official” until delivery of the baby. With “scientific” study, at the turn of the 20th Century they modified this “belief” or “truth,” suggesting that life actually begins at conception. The “soul closet” theory as some skeptics might call it.

Eventually, despite various, even painful, objections, I believe that the Constitution will not permit states to ban first term elective abortions. Despite our Judeo Christian roots, ours is not an Orthodox Christian or Jewish State. The Constitution guarantees freedom of religion. Just as painful to some people is the realization that, while the Constitution will doubtless allow even late term abortion to save the mother’s life, it may not allow abortions for rape, incest or “psychological” reasons without quite extenuating circumstances. Despite the “right of privacy,” late term elective abortions would actually seem to pit “murder of a viable human being” against this privacy. Do you really think that the Constitution would condone an elective abortion at seven or eight months because the “carrier” had experienced that “bad hair day?”

John Kerry seemed to believe that the “bad hair day” is sufficient reason for late-term or even “partial birth” abortion. George Bush seemed to believe that even at the expense of the mother’s life, even if it were the only reasonable way to save her, “partial birth” abortion should be outlawed. Neither proudly illiterate candidate had studied this issue at all! “Partial Birth” abortion is reserved only for emergencies/ two physicians need to verify that it is the only reasonable way to save the mother. It is never an elective procedure. The fetus is not really viable. It’s head is enormous due to conditions of “anencephaly” (no higher brain) or “hydrocephaly” (water filling the brain cavity). Even with a conventional C-section, the head needs to be decompressed to “safely” remove the fetus. John Kerry wanted to legalize the procedure as “elective.” George Bush wanted to kill the mother to save the “dead” brainless fetus. I would not honor either one of these men with the title “strict constructionist,” would you? I would call them “illiterate destructionists.”

No discussion about revising the Constitution can avoid what I call the “Great Confrontation.” That is the vacuous “Patriot Act” vs. “Gun Ownership.” That is the “Patriot Act” vs. “Comprehensive Energy Policy.” That is the “Patriot Act” vs. the “Constitution.” That is the “Great Contradiction.” What we are seeing is pseudo-conservative reconstruction of the Constitution and it is far, far more dangerous than illiterate liberals exaggerating and abusing civil rights legislation. When pseudo-conservatives reconstruct the Constitution, they destroy rights and with them “due process.” The whole idea of the Constitution was to create a government that could preserve “inalienable rights” and still protect its people.

The First Amendment has now been reconstructed to allow illegal search and seizure, bugging of phones and searching bank accounts without a warrant. Not only foreigners, but Americans can be denied trial and counsel for up to four years and may be tortured in violation of the 5th through the 9th Amendments. Meanwhile, the Federal Government is now permitted to usurp the powers of Congress which are clearly “reserved to the states respectively or to the people,” making a mockery of the now extinct 10th Amendment. The excuse for illegal surveillance, illegal arrests, denying trials and even torture is twofold: (1) We need information leading to capture of terrorists and prevention of terrorism, and (2) We need to prevent contributions to terrorist organizations.

There are, as usual, problems with the small, pesky details. Information gained by torture is notoriously inaccurate and best used by incompetent intelligence personnel. The present Neopsychotic administration does not know how to process information, only how to spin it. Meanwhile, President Cheney and his henchmen have found and prevented precious little in the wake of illicit contributions to terrorist organizations. Worse yet, the really nagging “Alka Seltzer” question that just won’t go away: How much of each dollar do we pay for (gasoline and) oil that goes directly into the coffers of Islamic terrorists? 20%, 30%, 40%??? What’s a few hundred billion dollars among thieves, uh…. Friends. Meanwhile the pseudo-conservative reconstructionists have fought even harder than the pseudo-liberal reconstructionists to avoid a comprehensive energy policy. After all, what would all those pseudo-patriots do without their rich, loyal lobbyists?? I disagree with poor Harry Belafonte- our President is “Cheney” not “Bush,” Harry. Shame on your inaccuracy. Mr. Chaney is the world’s biggest terrorist, Mr. Bush and Congress are reluctantly the greatest financial and political contributors to world terrorism. President Bush can best be described as a poor “Fellow Traveler.”

Let’s examine the Second Amendment the way we examined “Roe vs. Wade.” It reads “a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Or, in more modern structure:

The right of the people to keep and bear Arms shall not be infringed [because] a well-regulated militia is necessary to the security of a free State.

Clearly, the Founding Fathers intended for people to be allowed to “bear Arms.” Just as clearly, the Arms must be well regulated. The question is: whose duty is it to regulate them? It sure looks like “the free State.” Who is that? Again, reading the Constitution, it looks like it’s the “states.” Anyway, according to the Constitution itself, when it’s not clear, it’s “the states.” (10th Amendment) However, just as clearly, the Federal Government has not the right, but the duty to protect its citizens, so it needs to insist that the states regulate their guns. Furthermore, the Federal Government can contest the state law if it violates other parts of the Constitution. Thus the state must, on the one hand, protect people from guns, but also allow “responsible people” to own guns.

This is the point at which responsible parties need to debate and compromise as to what is “responsible.” I can’t say that a citizen can never own an assault rifle. I’d like to say it, but I’m not sure the Constitution would back me up. I’d like to say that an individual cannot own an atomic weapon, but I’m not sure the Constitution would even support me in that case either. I know one thing… if outlawing atomic weapons is legal, then one would be hard pressed to avoid applying the same argument to Assault Weapons.

If one uses the argument that he hunts rodents and uses his assault weapon for target practice (fun), if a gun collector wants an assault weapon to “complete my collection,” should special, far more stringent background checks be employed? Should every single person with an assault weapon or high-powered automatic weapon be on a special list? Should every single “legitimate” weapon of this “caliber” be traced carefully as soon as it enters the country or even before? Then, the really ironic question: If these things are not done, does a terrified citizen have a right to shoot someone whom he sees carrying an assault rifle???

Head spinning?… No rest for us, the wicked or weary.

There is a more serious conflict involving the 2nd Amendment and the “Patriot Act.” Much as I hate to take sides in the “Gun Control” debate, I would like to help the NRA. YOU ARE NEXT BOYS!!! How can the NRA back the “Patriot Act??” Your rights to own guns are in serious jeopardy. Your organization made huge strides during President Nixon’s tenure because people feared he would take over the armed forces and create a fascist dictatorship. People “got a little excited,” they wanted their guns. They certainly need them now. So far the Patriot Act has violated the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 10th Amendments. Guess what?! Your Amendment is next. They don’t care about the 3rd Amendment yet (soldiers allowed to live in your house). Do you think they’ll let you keep your guns when they don’t need you anymore?


Allen Finkelstein D.O.