Wednesday, March 02, 2005

Kelo v. Wade

Here’s a constitutional argument regarding abortion that’s designed to make all the right (and left) people angry.

Suppose for argument’s sake that a embryo or fetus is a legally and constitutionally relevant life. (I say “relevant” to distinguish it from all the irrelevant forms of life, such as sperm, unfertilized eggs, cockroaches, etc.)

The 13th Amendment bans involuntary servitude, effectively making all citizens self-owners. People’s bodies are their property. The 14th Amendment assures that no citizen can be deprived of “life, liberty, or property, without due process of law.” The ability to decide the use of your body is surely a liberty interest, but given my point above, it is also a property interest. What due process is required for the deprivation of a property interest? The 5th Amendment’s Takings Clause specifies that private property “shall [not] be taken for public use without just compensation.”

By my interpretation, then, the 5th, 13th, and 14th Amendments together guarantee that if a woman is required by law to carry a child to term (when she would not otherwise have done so), she must be paid compensation for the use of her bodily property. After all, the state would be forcing her to use her property for a purpose the state has deemed important – specifically, the harboring of an embryo/fetus. If a woman’s house were claimed by eminent domain and used as housing for the poor, even if only on a temporary basis, compensation would surely be required. The same argumentation applies to the use of her womb.

But let’s take the argument one step further. In the case of Kelo v. New London, currently being considered by the Supreme Court, many defenders of strong private property rights (including many conservatives as well as Agoraphilia’s own Tom W. Bell) argue that “public use” should actually mean “use by the public,” not just use by a particular individual or privileged group. If the state took a woman’s house and handed it over to a private housing developer, that wouldn’t constitute public use, and hence the taking would be barred (so compensation never becomes the issue). Similarly, an anti-abortion law does not appropriate a woman’s womb for use by the general public, but for use by just one individual – the embryo/fetus in question.

Given these arguments, the conclusion is clear: anti-abortion laws violate the Takings Clause. And even if you don’t buy the property defenders’ argument in Kelo, an anti-abortion law would still have to provide compensation to mothers forced to bear children.

(An aside: Some argue that a strict textualist reading of the Takings Clause would actually allow takings for private use without compensation. Read Tom’s post with accompanying comments, linked above, for one response to that argument. Read Michael Rappaport for some other responses. Most of the responses rely on interaction of that clause with provisions elsewhere in the constitution.)

(A second aside: Before anyone points this out, I realize my argument isn’t unprecedented among libertarians; specifically, Judith Jarvis Thomson made a philosophical, as opposed to constitutional, defense of abortion rights along basically the same lines.)


Anonymous said...

The property defender's argument is clearly absurd. I can't tell if you are sincere or playing devil's advocate, but I'll play along anyway.

If you accept, for arguments sake (as you have) that "a fetus is a legally and constitutionally relevant life," then the property rights analogy could go like this:

A female property owner in rural Alaska answers her door during a terrible snowstorm and lets in a lost hiker obviously suffering from severe hypothermia. Without shelter, the hiker will assuredly perish. Over hot cocoa, she asks the hiker how he likes her new tablecloth.

He replies in a weak but sincere voice: "it's very nice."

Unsatisfied with the specificity of his reply, she demands he leave her property and go back out in the storm - where his death is certain.

Not wanting to die, he begs her to stay inside, and, in a panic, grabs onto a beam and refuses to leave.

She in turn grabs her shotgun, blows his head off, throws his body out in the woods, and returns to her cocoa.

One could make the case, had she let him stay the night, that she was entitled to compensation. However, it is ridiculuous to conclude, following the property defender's argument, that her taking of this "constitutionally relevant" life would be legally acceptable on the grounds that the anti-killing-defenseless-hikers laws violate the Takings Clause.


Tom W. Bell said...

Glen: Although I find merit to your deductive, I must sadly question the premise that the 13th Amendment effectively establishes that each person has a property right in him- or herself. The law does not generally treat persons as self-owners, alas. Thus, for example, we see laws criminalizing(!) suicide, forbidding recreational drug use, and otherwise restricting us from the peaceable enjoyment of our property rights in ourselves.

Z (whose *secret identity* I discovered only recently and by dint of inside information): The law of trespass includes an exception excusing emergency situations such as the one you describe. Those who trespass in order to save themselves from deadly peril do, of course, have to pay compensation for any damages they inflict on the property they use. But they cannot rightfully be warded off by threats of violence, much less actual violence. I leave to you and Glen the work of fitting that point of information into your debate.

Glen Whitman said...
This comment has been removed by a blog administrator.
Glen Whitman said...

I'll answer Tom first. You're assuredly correct that the 13th Amendment doesn't guarantee an unattenuated form of self-ownership, as evidenced by the laws you cite (drug prohibition, etc.). Then again, we are guaranteed liberty in other sections of the Constitution, and that liberty is also not unattenuated (indeed, it's limited by the very same laws you mention). Also notice that we have many forms of property that have burdens on them -- for instance, you can't legally grow marijuana in your back yard. But we wouldn't say that means you have "no right of property."

So I would say that you still have a bodily property right protected (as least implicitly) by the 13th Amendment, the existence of some restrictive laws notwithstanding. And even if the boundaries of that property right are not clear, it seems to me that the very *core* of the right in question -- protection against involuntary servitude -- is implicated by anti-abortion laws. The interest most clearly protected by the 13th Amendment is a right not to be forced to perform labor for others. Hmm... labor... nice double-meaning!

Now for anonymous. My argument was indeed partly tongue-in-cheek, but I also think there's something to it. You haven't really made a constitutional argument, so I'll rely on common law and common sense. Given your position, you at least have to concede the compensation part of the argument, which is the point I considered most interesting. As Tom points out, the common says that in "necessity" cases, like the one you describe, compensation must be paid by the trespasser.

Justifying the forced eviction part is not easy, but I'll just ask this: how long are you required to let the hiker stay in your cabin? Say he's too feeble to make it home until spring, which is nine months away. Are you required to shelter, feed, and clothe him for the entire time? To my knowledge, the common law necessity cases don't even address that kind of situation -- the paradigmatic case involves a storm that will blow over in a day or two at most. So are you willing to put any limitation on the burden on property that is justified by someone else's perceived need?

Maestro said...

Wouldn't the logical conclusion to draw be that inducing labor even when that would almost certainly kill the baby should be legal, but killing/aborting it shouldn't? Not saying I hold this position, but it does seem to flow from the argument.

Anonymous said...

One issue that you haven't addressed Glen is the fetus' property rights. At what point is it recognized as 'Constitutionally relevant life'? If it *is* so recognized, then it has just as many rights as the mother (and the father, let's not forget his interest in the issue).

Jason B.

Glen Whitman said...

Jason -- the whole point was that even if the fetus has rights, those rights don't include the ability to subject another person to involuntary servitude.

JB said...

While your points are instructive Glen, I think it fails to observe that this is not involuntary servitude. When the choice was made to engage in risky behavior one accepts the risk they will be placed into service. This seems to be an important distinction.

To wit, If you want to complain about involuntary service after military deployment one shouldn't have enlisted to begin with.

JB said...

Oh and by the way, I think you are being to sure about the nature of compensation on temporary takings...The Tahoe Sierra Preservation case for example. I don't know for sure, but I don't know that you can be so sure that temporary takings are compensable.

After all, let's draw a corrolary and call the illegal abortion statute, a temporary zoning regulation (relating to a particular use of property on a portion of one's property) related to the protection of another/the environment of the other. Now your taking case looks even weaker.

Julian said...

This comment thread is in dire peril of turning into one of those stale rehashings from Free Market Net circa 1998. Can we just link to one of those and spare other commenters the kabuki ritual of playing out the next 20 tedious steps?

Anonymous said...

hmm...i'm gonna have to agree with jb that when you engage in sex, you take the risk of being pregnant and the state should not be responsible for any compensation even if it was unwanted pregnancy.
although i would have to say, "i was engaging in sex, i didn't sign up to actually be fertilized."
but any kind of state compensation for someone's choice bad or good scares me. i used be a legal intern for the public defender of oakland as an undergrad and i saw so much abuse of state welfare by these women, that it disgust me to no end. these people who should NEVER EVER be reproducing would have so many goddamn children. it's sad that children are used for monetary compensation.


Anonymous said...

just to be clear, i am pro-choice but was just stating my disagreement with compensation arguing a woman's body should be compensated like a property should be if it were taken away by the gov't for public use.