Court: Women's natural rights overrule anti-abortion law

Gordon L. Weil

True or false?  The U.S. Constitution begins: "Natural Rights.  All people ... have certain natural, inherent and inalienable rights...."

False.  That is in the first sentence of the Maine Constitution.  Most other states have a natural rights clause.  For example, the Kansas Constitution begins: "Equal rights.  All men are possessed of equal and inalienable natural rights...."

The Declaration of Independence adopted the principle of natural rights in the United States, but those exact words were not included in the Constitution.  It contains similar but more limited provisions.

This concept is not simply what some belittle as a "glittering generality."  It may mean a lot.  That's what the Kansas Supreme Court decided last week, determining a state law violated the natural right to liberty.

By a 6-1 vote, it overruled a state law designed to limit a woman's right to an abortion.  When a conservative state produces a decision on state law that cannot be appealed, possibly making many conservatives unhappy, that's news. 

This was no Ivy League decision.  All seven judges had studied at one of two Kansas law schools.  Four were appointed by Republican governors and three by Democrats. 

Given GOP domination of Kansas politics in recent years, the decision received national coverage.  Most government action on abortions in mid-America is aimed at restricting access to them.  Kansas upset the pattern.

As important and surprising as the decision may have been, the court's reason for its decision was more far-reaching.  It was a rare moment when a government institution focuses on the fundamentals of American beliefs underpinning the entire system of government.

Many people may believe that the Bill of Rights lists all the rights given to people by the government.  In fact, it only limits the power of government to infringe certain rights that people already have.  The Constitution specifically states that people have other rights which government cannot override.

Many state constitutions, like those in Maine and Kansas, go beyond the U.S. Constitution and declare that people have natural rights, which result from their being, well, human beings. 

Natural rights, derived from nature itself, exist with or without government.  When people create governments, they give up only some of their rights.

The Kansas court found that the state could not limit the natural right of a person to control her own body by denying her access to what doctors consider the safest abortion method.  The Kansas law was unconstitutional because it violated the state constitution's recognition of natural rights.

The decision was a stark reminder that people have inherent natural rights and choose to cede some authority to government, not that government gives people their rights.

What about the sole dissenter?  He agreed that people have natural rights and may limit some of them to give powers to government.  But the people themselves must decide what rights they have limited or kept.  They elect legislators to act for them.

Americans are accustomed to majority rule.  Can the constitutional recognition of natural rights, belonging to each person, be overruled by the majority?  "Inalienable" means they cannot be taken away, especially by government, but doesn't that happen frequently?

In the dissenter's view, courts should not decide on natural rights.  But the Court majority noted that checks and balances empower it to review legislative action.  Is there judicial review of whether laws are constitutional when it come to natural law or is majority rule the last word?

The dissenter questioned if courts really have the authority to decide what a natural right is, even if that right is recognized in a constitution.  If they don't have the authority, how much is the right worth?

Most people now believe they have a right to privacy, though it is not mentioned in the Constitution.  The U.S. Supreme Court, not Congress, acknowledged it.   It relied on a key article written by Samuel D. Warren, a Boston lawyer and owner of a paper mill in Westbrook, Maine, and his law partner, Louis D. Brandeis, later a Supreme Court justice.

Governments, federal and state, have assumed increasing powers, sometimes required in an increasingly complex world.  But they also set themselves apart from the people who are the ultimate source of their powers.  Think of times when government secrecy is used for government's own 

purposes.

If the Kansas decision is taken seriously, other state courts may question abortion laws and government attempts to assert powers at the expense of people's natural rights.  Will lawyers, opposing government policies, start asking the Supreme Court to consider natural rights?

This could get interesting.

Impeachment history reveals risk for both Trump and Dems

Gordon L. Weil

Impeachment is in the air. 

The Mueller report made no criminal charges against President Trump, but questioned some of his attempts to obstruct the inquiry.  Some in Congress believe he should be impeached for those actions.

Impeachment is almost always political, and it could well be in this case.  Only Democrats are considering impeachment.  They understand that impeachment would be a political act.

It can be voted by a majority of the House of Representatives, where Democrats now enjoy control.  After impeachment, the Senate can convict by a two-thirds vote.  That would require some GOP senators to vote to convict.  That's quite unlikely, making the House vote little more than a gesture.

For House Democrats, impeaching Trump might only be worth doing if it helped them in the 2020 elections.  If not, it could place a burden on Democratic candidates.  Obviously, nobody knows the answer.

In fairness, some Democrats believe that Trump's actions to try to kill the Mueller investigation did truly transgress the limits on presidential powers.  They may believe that the issue needs to be tested for the sake of history, not only current politics.

That possibility could have influenced Special Prosecutor Robert Mueller.  Deputy Attorney General Rod Rosenstein and Attorney General William Barr went along.  All three are Republicans.  Rather than charging Trump with criminal acts, they may have chosen to leave only the impeachment option.

The Constitution contains the power of impeachment to help ensure that limits could be placed on federal officials, not only presidents, who engage in criminal activity or exceed their powers.  The House, as prosecutor, and the Senate, as court, decide.  The Supreme Court has ruled that the judiciary is not involved.

The penalty for impeachment may be political embarrassment; the penalty for conviction is expulsion.  Neither is the same as a court judgment of criminal guilt.

Several impeachment proceedings have resulted in conviction and expulsion, usually when connected to a criminal act.  But in the most important cases, no conviction was obtained.

In 1805, the House, controlled by Thomas Jefferson's Democratic-Republican Party, impeached Samuel Chase, a Federalist-appointed Supreme Court justice, who had been openly hostile to Jefferson.  Some of Jefferson's supporters voted against impeachment as did some in the Senate, which did not convict.

The Jeffersonians were politically motivated in taking action against Chase.  But some of them put the independence of the judiciary above partisanship.  Federalist judicial appointees would survive, even as presidential politics changed.

The first attempt to remove a president came when Republicans tried to oust Andrew Johnson, a Democratic senator who had been Lincoln's second-term vice president.  Republicans wanted to transform southern society, not merely suppress secession.  Johnson wanted to go easy on the South, allowing it to pursue racist policies. 

By a straight partisan vote, with southern Democrats not yet back in Congress, Johnson was impeached.  The Senate missed conviction by one vote, after seven Republicans voted to acquit.  Contrary to myth, none paid a political price for his vote. 

Maine's William Pitt Fessenden, a Bowdoin graduate, cast the first Republican vote against conviction.  He disliked Johnson's policy, but rejected using conviction for partisan political purposes.  In the end, Johnson prevailed, when a fully restored Congress backed his policy.

In 1974, a bipartisan House committee vote recommended impeachment of President Richard Nixon for covering up his campaign's break-in at the Democratic National Committee offices.  His actions may have been criminal.   

When Nixon learned that many Senate Republicans would vote to convict him, he resigned.  The elections that year yielded a crushing Democratic majority.

In 1999, the House impeached President Bill Clinton by bipartisan vote for lying to investigators about his personal, non-political transgressions.  The Senate refused to convict.  

Several Republicans, including Maine's Olympia Snowe and Susan Collins, opposed conviction.  A Republican won the presidency in 2000, but the party lost seats in Congress.

History shows heavy, if not absolute, partisanship in the impeachment process.  Only in Nixon's case was impeachment connected to probable criminal action as president.  Only in his case did it, or the threat of it, work.

Because impeachment is a political act, the Democrats must make a political judgment.  Will they help or hurt themselves politically by impeaching Trump without winning conviction and possibly without a single Republican vote?  History goes both ways.

Besides, impeachment might not prevent a Trump comeback.  Federal judge Alcee Hastings, impeached and convicted, is now Florida's longest serving member of Congress.  Andrew Johnson returned to the Senate and was sworn into office by the vice president who, as a senator, had voted to convict him.

Assange, Wikileaks endanger independent press

Gordon L.  Weil

Julian Assange creates problems. 

The Wikileaks founder does it not only by releasing stolen documents, but also by his own release from the Ecuadorian embassy in London.

Assange enjoyed Ecuador's diplomatic protection, because he feared the British would send him to the U.S. to be tried for releasing secret documents.  The former Ecuadorian president shared his dislike of the U.S.  His successor differed and had Assange expelled.

Bradley (later, Chelsea) Manning was an American soldier who stole documents and passed them to Wikileaks, an online news group aimed at embarrassing governments by exposing their secret communications.  The theft was illegal and Manning, subject to military law, was imprisoned.

But the revelation itself of government secrets is a function of the free press, guaranteed by the Constitution.  Was Assange's action protected by freedom of the press?  Could he be arrested for receiving documents he knew were stolen?

A free press can keep an independent watch on government.  It represents the public, which cannot exercise control of supposedly democratic institutions if it lacks information on what its leaders are doing.

In a mass democracy, government often sees itself as separate from citizens, not subject to them.  A free press tries to help the public control their government, especially if that means revealing matters officials would prefer to keep secret.

Of course, there must be limits on what should be published. For example, the media should not directly cause the death of people or reveal actions under way that directly affect national security.

Assange's supporters see him as a member of the free press.  To hold government accountable, they find it acceptable to publish stolen documents.  Otherwise, government could shield itself behind a claim of secrecy.

The father of the concept that people have the right to break the law for a higher purpose was Henry David Thoreau, a Massachusetts man who inspired Gandhi and Martin Luther King, Jr.  He accepted that, if caught in a violation of law, a person might have to pay the penalty, even going to jail. 

The federal government has not charged Assange with a crime for publishing secrets.  Instead, he is charged with assisting Manning in breaking the law by stealing documents.  His supporters believe that even that action is protected by freedom of the press.  Assange believes he cannot get a fair trial in the U.S.

The legal war in London about turning Assange over to American justice may continue for years.  If he faces a court in the U.S., the system will be tested to see that he gets a fair trial.

But there's more.  Assange strongly dislikes the U.S. and Hillary Clinton, the 2016 Democratic presidential candidate. As an independent journalist, he is certainly entitled to criticize and embarrass both.

American intelligence agencies and the media have found that Russia tried illegally to influence the presidential election, favoring Donald Trump and opposing Clinton.  The Russians hacked the computers of the Democratic National Committee and obtained information that could harm the Clinton effort.

The Russians, well aware of Assange's opinions, turned the information over to Wikileaks.  That organization knew that it was relying on a source trying to undermine the American system of government, but published the hacked emails.

Assange and Wikileaks allowed their status as independent news providers to be exploited by knowingly helping the Russians' anti-American moves.  At that point, they shed their independence and became weapons in a war by one government against another.  In doing so, they may have lost their right to be considered journalists.

It remains unclear if Assange will ever be held accountable for assisting the Russian scheme.  If his actions are rated as just plain old journalism, public confidence in the media, already battered, will suffer even more.  Loss of independent scrutiny of government is a serious danger to the American system of government.

Faced with groups like Wikileaks, the government and others, like the Democrats, must also show greater discipline. Electronic communication is not absolutely secure and may never be.  People must recognize that any electronic message may find its way to the public.

Of course, there will be real secrets that need to be better protected.  How?

Commit less to writing.  Use more voice communication and faxes, which are far more secure than the Internet.  Avoid unimportant electronic communication, because what may seem trivial could turn out to be sensitive or open to distortion.

Above all, Americans should insist that their leaders disclose more and not hide behind the walls of secrecy they build.  But they will always need a free and independent press.