In my latest reading of Clear and Present Dangers: A Conservative View of America's Government
(copyright 1975), M. Stanton Evans defended his objections to
marijuana, pornography, abortion, and euthanasia. On pornography, Evans
believes that local communities have the right to set their own
anti-obscenity standards. But doesn't that violate the First
Amendment? Evans did not specifically address this question, but you
may recall from my previous write-ups on this book that Evans does not
believe that the Fourteenth Amendment applies the Bill of Rights to the
states.
But I want to focus in this post on the abortion issue. Regarding Roe vs. Wade, Evans says on page 350, "The
legal reasoning was that the drafters of the Fourteenth Amendment
didn't believe the child in embryo was a 'person' and didn't intend to
confer its protection on the fetus----and far be it from the court to
enlarge upon the purposes of the drafters."
I get the
irony: Evans is probably saying that liberal judges ordinarily believe
in a living Constitution as opposed to sticking with the original intent
behind the document, yet in Roe vs. Wade they suddenly decide to go
with the original intent! But is Evans guilty of doing the
opposite: ordinarily supporting original intent while regarding the
Constitution as a living document when it comes to the abortion issue?
I
can only guess. If Evans believes that the Fourteenth Amendment
protects the unborn, then the answer is probably "yes". If, however,
Evans merely thinks that state governments under the Tenth Amendment
should have the authority to restrict abortion as they wish instead of
seeing their laws struck down by judges according to a definition of a
right to privacy that (according to him) is not in the Constitution,
then the answer is "no", for in that case he'd be going with his own
understanding of the original intent behind the Constitution.
Which
accords more with Evans' belief? One the one hand, one could make the
case that Evans has the latter approach (states' rights) to the
abortion issue, for he says on page 347 that states have the authority
to ban contraception (whether or not they should do so), and so it's conceivable that he'd say that states have the constitutional authority to restrict abortion.
On
the other hand, perhaps Evans thinks that the federal government should
recognize the fetus as a human being with rights. On page 355, Evans
appeals to court decisions (Bonbrest v. Katz in 1946, Kelly v. Gregory
in 1953, and Paul v. Milwaukee Automobile Association in 1959) that,
according to him, acknowledge that the fetus has rights as an entity
separate from its mother. Evans states on this same page that these
decisions differ from certain earlier court decisions: "Prior to
recent medical discoveries concerning the reality of fetal life, it had
been assumed in some court decisions that the unborn child was indeed a
'part of the mother's body. But it is noteworthy that the trend of
twentieth century jurisprudence had been moving away from this notion as
the scientific evidence unfolded." Is Evans supporting the
concept of a living, breathing Constitution here: that our
interpretation of the Constitution should be influenced, not just by
original intent and what the text literally says, but also by recent
scientific advancements? Would Evans, therefore, argue that the
Fourteenth Amendment protects the unborn, even though the Fourteenth
Amendment explicitly defines as U.S. citizens those who are born
or naturalized in the U.S.? Or would Evans conclude that the
Constitution as it currently stands is not sufficient to protect the
unborn, and thus there should be a Constitutional Amendment banning
abortion?
(UPDATE: On page 403, Evans supports Congress passing a human life amendment.)