November 14, 2005

Alito: "The Constitution does not protect a right to an abortion."

The Washington Times reports on a 1985 document the nominee wrote in an application for a job as deputy assistant under Attorney General Edwin I. Meese III.
In direct, unambiguous language, the young career lawyer who served as assistant to Solicitor General Rex E. Lee, demonstrated his conservative bona fides as he sought to become a political appointee in the Reagan administration.

"I am and always have been a conservative," he wrote in an attachment to the noncareer appointment form that he sent to the Presidential Personnel Office. "I am a lifelong registered Republican."...

"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly," he wrote.

"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."...

Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.

"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote.

"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.

The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.

"When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign," he said. "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."
Let the battle begin.

Up until now, the attacks on Alito have been based on nothing of substance. Critics cherry-picked his cases, found the ones where he ruled against sympathetic parties, and treated the outcomes in cases as if there is no legal reasoning involved in reaching outcomes. Or they simply assumed that Alito must be a big right-winger because he (unlike Miers) was not being attacked from the right and conservatives all looked rather happy about having him as the nominee.

With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this. I see two aspects to the coming fight.

First, there is the question of what is the better set of values. A lot of people will read Alito's statement and agree with it, while others will oppose it. Some may only care about a few of those issues or may agree about some things and not others. Though most of the talk will be about abortion rights, we have a valuable opportunity to talk about what the full set of conservative legal positions is, to compare them with the liberal positions, and to debate about which is better. I welcome this public debate and hope it can be done well.

Second, there is the question of how personal beliefs affect a judge's performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside. Related to this is one of Bush's big issues: the liberal judges are activist judges who make the law mean what they would vote for if they were legislators. In this rhetoric, the conservative judges somehow escape the temptation the liberal judges succumb to. As long as you have a conservative judge, the rhetoric goes, you don't have to worry about what his political beliefs are: He will do the proper, judicial thing and not "legislate from the bench" like those bad liberal judges. Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision. Thus, the background beliefs and political tendencies of any judge will need to flow into the decision-making, no matter how modest and dutiful the human being making the decision is.

107 comments:

Too Many Jims said...
This comment has been removed by a blog administrator.
Mark said...

At least, those of us who criticized Alito on the basis of his conservatism were proven to be right to the extent that he is very conservative and an ideologue (taking proud in helping to "advance" his positions).
While many conservatives will dismiss his views of 20 years ago, there is no doubt in my mind that everything should be done to keep this Bork-like ideologue from the Supreme Court, even through filibuster if it comes to it.

Too Many Jims said...

"I believe very strongly in limited government, . . . and the legitimacy of a government role in protecting traditional values".

So is he a libertarian or isn't he?

Mark said...

"Traditional values" to many conservative ideologues include erasing the wall between church and state; affirming constitutionality of criminalizing private consensual sex acts, etc. The "limited government" rhetoric is extremely shallow for many of them. Witness his desire to roll back criminal defendants' rights. There's nothing libertarian about it.

Goesh said...

- let the sparks and fur fly - 15 years on the bench says alot to this layman

wildaboutharrie said...

20 years ago? A letter for a job application?

I welcome a healthy debate also, but surely his judicial record needs to be given more weight than this.

R3 said...

'Bork-like idealogue'...sounds like a great choice. Someone who will actually utilize precedent and brains to interpret the US constitution.

Sloanasaurus said...

Who is this Mark? He has a reliable lefty opinion.


Drudge was reporting on his radio show last night about Alito's abortion comments, however when you actually read the comment:

"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."...

Alito said he is "proud of the contribution to the cases," he does not claim that (as Drudge implied) that Alito believes Roe V. Wade should be overturned.

To really garner opposition from moderates, democrats need to find Alito saying as a circuit appeals judge that Roe should be overturned.

Remember, the new line (acceptable by democrats was given by Kaine in the Virginia governor election, where one can abhore abortion as a public law (not just a private matter) but still promise to enforce the laws.

There is some ammunition with the Alito documents, but not enough.

Tom Strong said...

I'm with wildaboutharrie on this one. I mean, everybody panders on job applications. Sure, ask questions, but his judicial record should weigh heavier than a cover letter.

Mark said...

Guys,
What evidence would you need to believe that Alito would overturn Roe v Wade and in general move the law in a sharply right direction? Sure, people pander on job applications, but remember: this was the application for a political position. If Alito simply wanted to work in the Justice Department, there are many career positions available where one does not have to be ideologically committed to one set of values.
And to r3, well, we'll just have to disagree on Bork. Far from utilizing "precedent and brains," Bork and Bork-like ideologues will sharply limit our rights and increase greatly the government's role. You can forget then about privacy, not only as it relates to abortion, but to the whole range of issues. As I posited, some time ago, would you, people who would support Bork, Scalia, Thomas etc, would like to live in a state that adopts their view of Constitution?
I.e., a state that criminalizes a private consensual sex between adults; a state where a criminal defendant has very few, if any, rights (remember, Scalia voted to overturn Miranda; talk about respect for precedent!); a state where individual states can establish official religions (Thomas' view), etc etc.

And my personal opinion about precedent and stare decisis is that most Justices (with few exceptions) don't care about it at all. When they feel that a certain case needs to be overruled, they do so. Both liberal and conservative Justices do it: witness Lawrence, Seminole Tribe, Brown v. Board of Education, a case that overruled precedent that victim-impact statements are admissible in sentencings, etc.
So, I would not attach any significance to anyone's statement how he or she respects precedents or superprecedents.

peter hoh said...

This, perhaps, explains why Bush did not nominate Alito earlier.

This is among documents that the White House is releasing, rather than one that opposition research dug up. So I'm guessing that they have known about this document for a while, and that they made a conscious decision to release it now.

Henry said...

Mark,

Do you want to live in a state that controls political speech and evicts people from their property to give it to private interests?

Oh wait...

Sloanasaurus said...

Mark is right. Alito represents the real risk to leftist relativist ideology in this country. There has been a cabal of liberal judges trying to impose their views on a society theat rejects such views. People like mark hide this ideology in terms such as "privacy."

Why then have the democrats been wasting their time on pre-war intelligence..... Alito is slipping by.

anselm said...

I would not attach any significance to anyone's statement how he or she respects precedents or superprecedents.

While I wouldn't completely dismiss the weight a nominee claims to give precedent, I mostly agree. On a scale of 100, one nominee gives stare decisis a weight of 30, another nominee gives 70. What's the diff? Nobody ever gets into the "red zone" at the fringes. ATEOTD, stare decisis will always apply - until the need for correction is deemed "significant" - say, 66+/100?

Mark said...

Henry:

Try again. A state that "controls political speech?" Do you mean to say that a state tells you what to say? Or that a state punishes you for your views? Or that a state where you cannot say what you want?
Somehow, I think you are referring to campaign finance reform case which merely upheld some restrictions on money in politics. It's far from "controlling political speech."
Also, your second concern about a state taking your property away is similarly misplaced. While I am not sure I agree with the outcome of that case, the court, based on precedent, upheld the local governments' rights to exercise eminent domain with respect to blighted areas. Now, should have the Court given more protections to private property owners? Perhaps.
But it just doesn't cut to say that now government can take your property away.

Mark said...

Sloanasaurus:

I am glad you at least openly say that you disagree with "leftist relativist ideology" which gives people right to live their lives without excessive interference by a state. Excellent, your view is that private consensual sex between adults is subject to regulation by a state.

I welcome this debate any time. Conservatives usually are able to win PR on judges by cloaking their true positions in vague meaningless statements like "judicial activism", "strictly interpret the law", etc. When people like Sloanasaurus express their views openly, we at least know where they want to take this country.

angryblackconservative said...

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/14/AR2005071401693.html

i wonder how alito feels about the environment, and how his catholic mother who said "of course he's against abortion" feels about children born polluted.

Henry said...

Mark. Parallelism and hyperbole. That was my point.

Mark said...

Henry,
I understand, but there was no hyperbole in my statements. Law in Texas, invalidated in Lawrence, was exactly about private consensual sex in the bedroom between adults; Scalia did vote to overturn Miranda which is a bedrock case in criminal law; Thomas did express a view that the first amendment does not prohibit states from establishing their official religions. There was no hyperbole in my statements whatsoever.

PatCA said...

You're right to be upset, Mark. Your side has lost the legislative branch and the executive branch year after year. The liberal media and literature and film are despised by the majority of Americans. The last bastion of your power, the judicial branch, is up for grabs.

I'm glad the public debate is finally here.

Henry said...

...Bork-like ideologue...
...Bork and Bork-like ideologues...
...Bork and Bork and Bork-like ideologues...

Oh wait. That last one was mine.

Mark said...

Note that neither of the commenters, so far at least, doesn't respond to my arguments directly. Some, such as sloanasaurus and patca seem to be saying that I am right and the outcomes that I listed are correct; while others, such as henry, seem to be saying that I am exaggerating.
In response to patca, your side was able to win elections not because of the issues that I listed, but because of your side's successful muddying the water with meaningless claims. And yes, courts are the last bastion that protects Americans' rights. And you have no right whatsoever to speak for the majority of americans; if anything, majority of americans despises people who want to take their freedoms away (more than 65% support Roe v. Wade)

wildaboutharrie said...

Mark, if you please, what particularly in Alito's record as a judge is concerning you?

Thanks.

Nick said...

"Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago."

I think that quote says it all... that despite his feelings, he has ruled in accordance with interpretting the law as it exists... not that anyone on either extreme side will see it that way.

People would rather look at what he said 20 years ago than what he's done since being on the bench.

Mark said...

Harrie,

What bothers me is that whenever he had a choice (almost whenever), Alito ended up on a side of pro-government intrusion in people's lives. If you examine his rulings, you'll see that he steadily moved the law to the right, to the extent that he could. As I said earlier, there are seldom areas of law which are so well defined that a judge cannot allow his personal choices shape the way he interprets the law. However, all judges except for the Supreme Court, are bound by precedent and have oversight by upper judges. The Supreme Court justices, however, have no oversight and can rule any way they want. I am absolutely convinced that without the oversight, Alito will disregard vital precedents and move the Sourt to far right, presently occupied by Scalia and Thomas (and possibly Roberts). We cannot afford to have extreme ideologues who would take our rights away on the Supreme Court.
All of his record, taken together, strongly suggests that he is exactly such an ideologue.

Mark said...

Alito is a smart judge who doesn't want to be overturned and who understands that as a lower court judge he's bound by the Supreme Court's rulings. That's why you probably won't find anything in his rulings or even dissents as an appellate judge that would expose him as an ideologue, you have to look deeper than that. To glean his personal views which undoubtedly will shape his jurisprudence when he is a Supreme Court Justice (no fear of overturning by a higher court; ability to change precedent), we need to look into his writings, such as this one. While dated, there's absolutely nothing in Alito's record to suggest that his views changed. For some people (like r3, slaoanasaurus) it's good, for others (like me), it's an indication of being an extreme far right judge.

Henry said...

Mark, as you have guessed, I don't take you seriously. Your arguments consist of hyperbolic extrapolations larded with ad hominems (bork, bork-like). In your "what kind of state do you want to live in" sally, you conflate judical process and political outcomes. When I mention Kelo, a possible misjudgement by the side of the court you appear to like, your tone abruptly shifts from blanket castigation to one of grudging reflection.

Finally, in your response to wildaboutharrie, you reduce Alito's 20-year-record to a left-wing bumper sticker.

Perhaps Alito's record is actually more complicated. I refer you here:

http://althouse.blogspot.com/2005/10/why-alito-is-stronger-choice-than-john.html

Icepick said...

Mark,

Part of the problem here is the different ways (at least some) conservatives see the problem of governance. Whether or not I think the government should be regulating private consensual sexual behavior is moot. I don't think the unelected juduciary should decide every single issue. Last time I read the Constitution, there wasn't a single word in it about sodomy, fornication, or any other type of sexual behavior. Nor, to the best of my recollection, was there a mention of a right to privacy.

Maybe there should be a right to provacy, but I don't believe there is one. But the fact that the judiciary feels free to make up such rights disturbs the hell out of me, because what they can give, they can take away. (Which is apparently what you are most fearful of.)

These types of issues should be handled either by the elective branches of government, or by further amending the constitution.

Take the example of abortion. If Roe et al are overturned, abortion returns to the elective domain. While I doubt that pro-abortion forces would be able to get an amendment to the national constitution passed, I would image it would be easy to get such amendments passed to a majority of state constitutions. Further, I doubt that more than three or four states would even pass any legislation outlawing abortion in any meaningful way.

Once this returns to the elective domain, elective representatives will have to put up or shut up. And I imagine that given the polling numbers, those anti-abortion opponents who don't shut up face being voted out, or being heavily marginalized. And I say this as someone who is anti-abortion. We're on the losing side, electorally.

Frankly, the evangelicals don't make up that much of the electorate. (For the record, I am not an evangelical, nor am I religous.) As it stands, however, they have an inordinate amount of influence in the Republican Party. They can have this influence because the non-evans know that the courts will restrain the worst excesses of the religious right. Strip that away, and those non-evan Repulbicans will be faced with some rather tough choices. And I have little doubt that in such a case the fragile and slim Republican majority would disappear. Honestly, I don't see why Dems wouldn't want some of these issues to be up for a vote....

PatCA said...

"Mark, as you have guessed, I don't take you seriously. Your arguments consist of hyperbolic extrapolations larded with ad hominems."

Amen. See ya.

Sloanasaurus said...

Why can't a society decide through the various legislatures if marriage to your sister, sex with farm animals, drug use, sodomy, etc. should be legal or illegal. Doesn't it seem wrong that an unelected judge would decide?

Mark said...

Icepick,

An intelligent comment, thanks.

Our main difference, it appears, is the extent to which Constitution protects individual rights. Forget abortion for a minute since it is more nuanced, and let's choose Lawrence example, i.e. private consensual sex between adults. Your position is that there's nothing in the Constitution protecting an individual from government's criminalization of it. My position, shared by 6 out of 9 current Supreme Court Justices, btw, is that your reading of the Constitution is unduly narrow. The Constitution through the due process clause prevents the government from intruding in such private aspects of a human life. I know you disagree, but IT IS OUR SIDE that believes that our government is of limited powers (both state and federal) and does not have a power to intrude in personal private decisions under the guise of moral opprobrium. You evidently think that it should all be left to legislatures. Here's the fundamental difference between us: my side believes that there are certain rights which are so fundamental and so private that they cannot be taken away by legislatures. There's simply no reason, except for homophobia, for legislatures to criminalize private consensual sex between adults. NO reason. None.

You're right that it would be politically advantageous for Democrats if Roe were overruled. Here's another difference: we are not willing to sacrifice fundamental rights of people for political gains. Yes, most states would probably allow abortions if it were the issue left to states. But that's not the point. The point is that states should not get to decide whether we have fundamental rights or not; it's the province of courts. It's an imperfect system, granted, but nothing in life is perfect. I'd rather have independent judiciary decide what fundamental rights Constitution protects than have it decided by a legislature subject to various political pressures and current opinions in the society.

Mark said...

henry,

Ok, I won't take you seriously either. I listed real world decisions reached by right-wing Supreme Court Justices and you without any evidence claimed that I engage in "hyperbolic extrapolations". Well, until you are ready to discuss and not simply repeat unsupported accusations (blanket castigations), I won't spend any more energy re-stating what I had already said.

Sloan:

Society can certainly regulate incest marriages, bestiality, etc. But society cannot regulate private adult consensual sex because society has no legitimate interest in regulating it. No, it doesn't seem wrong that an unelected judge decides it. This is precisely why the Founders set up our judicial system: judges are supposed to be free of political pressures that permeate democratic process and are supposed to protect all of us equally. When there's no legitimate state interest in regulating consensual adult sex, judges say so.

madcat said...

Bravo, Mark. Thank you for this post.

And to those who keep repeating that rights not specifically enumerated in the constitution aren't protected by the constitution and can be consequently taken away by legislatures... your judicial philosophy flies in the face of the TEXT of the Ninth Amendment.

L. Ron Halfelven said...

I'd rather have independent judiciary decide what fundamental rights Constitution protects than have it decided by a legislature subject to various political pressures and current opinions in the society.

And so you have, Mark, and so you will, whether Alito is confirmed or no. Having him on the Court will have no effect whatever on either the independence of the judiciary or on its status (with which no one disagrees) as the final arbiter of which rights the Constitution protects-- and which it does not. So what's your beef?

Mark said...

Paul,

My concern with Alito is that he appears to share the some tortured narrow view of Constitution as some commenters on this thread. I.e., he won't protect fundamental rights simply because they are not explicitly listed in the Constitution.

sonicfrog said...

I still think that so many of the hot button issues would dissolve politically if either party would be brave enough to propose a Right to Privacy amendment (arguments opposing it would be interesting). It would certainly temper the debates about abortion, consensual sex, and illegal search and seizure (Patriot Act, DRMA). Of coarse that is why it will never happen. It seems some times that politicians use these very issues to keep much of the populous distracted from other important matters. Too many issues would be taken off the table, and our elected officials would then be held accountable for legislative largess and corruption, and out of control spending throughout government.

Jeez. I sound bitter this morning. What's up with that?

wildaboutharrie said...

OK Mark, I'm getting there in terms of your concerns, but are there specific rulings of Alito's that we can look at? Without having to second-guess as to what he would have done had there not been precedent in question?

Thanks.

Henry said...

Mark, on policy grounds respecting consensual sex, I totally agree with you. However, I don't have the faith in individual judges that you express. It is almost tautological to state that an "independent judiciary decide(s) what fundamental rights [the] Constitution protects." Originalists don't disagree with that at all. They just advocate a close reading of the text.

But give judges the right to decide what rights are "fundamental" and you create a star chamber. The language of advocacy is riddled with claims of rights, and with 10 seconds thought I can come up with more. How about the Rousseauean rights of newborns to breast milk?

The Dred Scott case after all was decided by judges that wanted to protect the "fundamental rights" of slaveholders against the tyranny of an unfriendly democratic majority.

The reason, as a social liberal, I support originalist (not necessarily conservative) judges, is three fold. First, I want the enumerated Constitutional rights we already have to be protected. Second, if judges get it wrong, orginalist judges can be held to account. They can't duck into the thickets of abstruse legal theory. Finally, if the culture wars must be fought, I want them fought in the public forum, not in the courtroom.

L. Ron Halfelven said...

We can't let just anybody into the independent judiciary, you know. They might not do what we want.

Icepick said...

Mark wrote: The point is that states should not get to decide whether we have fundamental rights or not; it's the province of courts. I'd rather have independent judiciary decide what fundamental rights Constitution protects than have it decided by a legislature subject to various political pressures and current opinions in the society.

I would rather that the Constitution state clearly what rights are protected. Relying on an independent judiciary is to constantly gamble with our rights, relying on the inherent nature of the Justices of the Supreme Court. If I am to gamble with government officials, I prefer it to be the ones I can vote out of office.

Consider freedom of speech. "Congress shall make no law ... abridging the freedom of speech...." This is pretty easily understood. Also, it is pretty easy to grasp, even without taking a ConLaw class, that this right sensibly applies to more than actual speech: symbolic actions, printed words, etc.

However, it is disputable as to whether or not this applies to campaign contributions. (I think it should, but the text of the constitution doesn't make that clear.) However, the Supreme Court has decided that campaign contributions are not covered, and are subject to regulation by Congress.

Now Congress and the FEC seem to be set on a course whereby bloggers (amongst others, presumably) who endorse candidates will be subject to federal regulation as to the content of their sites. The idea (as I understand it) is that such endorsements carry comercial weight, in that it is free advertising. So if a big site, say DailyKOS or INSTAPUNDIT, were to endorse Candidate X, the value of said endorsement would exceed the permitted maximum donation. Thus they would be subject to legal sanction. (Presumably this could include jail time.)

Should such regulations be passed, there will no doubt be a court challenge. All that is required s for the Supreme Court to say this is legal, and all of a sudden we will have a massive abridgement of freedom of speech, regardless of the wording of the First Amendment.

My point (I think) is that even with clear language and easily understood intent, we are subject to the whims of the SCOTUS. To construct large numbers of non-explicit rights out of the phrase "due process of law" seems to be highly risky to me.

madcat said...

A true originalist would honor our Founders' concerns about protecting individual rights against majority tyranny genearlly, and about protecting the unenumerated rights of individuals, specifically, (hence the Ninth Amendment) against popular legislative usurption.

By recognizing and respecting such wishes of the Founders as embodied in the Constitution, and in NOT ignoring the important role the Ninth Amendment plays in protecting unenumerated rights, liberals are arguably the true originalists and textualists.

Icepick said...

Hmm, that's a good point about the Ninth Amendment, MadCat.

That being the case, why has it been necessary to further amend the constitution to expand the rights of the citizenry? E.g., the 19th Amendment. Also, why have so many of these more recently established rights needed the SCOTUS to validate them, after decades or centuries of practice otherwise?

Mark said...

Harrie,

Well, again, it's very difficult to point to specific cases because they are all decided based on precedent and based on the premise that they are subject to review by a higher court. Nevertheless, I'll try to list the cases where Alito had a relative freedom to come up with his own conclusions:

1) Casey. Here, Alito was supposed to decide whether spousal notification can be legally required in abortion cases, and he ruled that it can. I agree that it is a relatively close call,but it is troubling because apparently in his view, states should be free to require women to notify their husbands. It completely overlooks that in vast majority of cases women notify the husbands anyway, and in the cases when they don't, they probably have very good reasons.

2) Doe v. Groody. Here, in dissent, Alito would have upheld the constitutionality of a strip search of a person not named in the warrant. Even Chertoff, now Homeland Security Secretary and at that time a colleague of Alito, strongly criticized Alito's opinion. Ditto his "libertarian" views.

3) Riley v. Taylor. Here, Alito belittled the claim that the trial was unfair because all black jurors were excluded. The full Third Circuit reversed this ruling, and the majority specifically criticized Alito for having compared statistical evidence about the prosecution’s exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, “[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants …”


Again, these are just three cases, there are probably more. However, we need to look at Alito's record as a whole, i.e. keep in mind that he was severely constrained in ability to move law as a circuit court judge by the precedent and a review by the Supreme Court.

Also, he reportedly stated that the Supreme Court's establishment clause jurisprudence went too far. I.e., he would impose on non-religious people religious symbols in public places, such as in Kentucky Ten Amendments case.

If you look objectively at his total record, it's very hard to escape conclusion that he's a right wing ideologue. And that's what scaries me and leads me to oppose him.

madcat said...

Icepick,

Because a constitution, by its very nature, cannot list each and every right protected by it. The Ninth Amendment recognizes that, but doesn't by itself remedy the problem of people reading the Constitution's liberty promises too narrowly (or, if you are a conservative, you may believe, too broadly).

Which is why, as Thomas Jefferson recognized, the Constitution has to evolve and change over time to accomodate our evolving understanding of equal rights. Even he didn't want "originalism" to be invoked to justify a stagnant, unchanging constitutional democracy.

My favorite Jefferson quote on this point is etched in the rotunda of the Jefferson Memorial:

I am not an advocate for frequent changes in law and constitutions but laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change. With the change of circumstances, institutions must advance also to keep pace with the times. We might just as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
- Thomas Jefferson, 1816

Icepick said...

MadCat, my problem is that the Founders view of which enumerated rights mattered seemed to be rather flexible. See the Alien and Sedition Acts, as an example.

Further, the Founders seemed to take a narrow view of unenumerated rights. Thus the necessity of the 19th Amendment to allow women their unenumerated right to vote. And I doubt that most of the Founders would have had much problem with anti-sodomy laws.

In theory, the Ninth Amendment seems to offer a wide variety of rights to the citizens, but in practice I don't believe that has been the case.

madcat said...

Mark,

My problems with Alito's Casey analysis are different- I wouldn't characterize his opinion as overlooking the fact that 5% of women don't tell their spouses and would be harmed. He addresses this head on and says that BECAUSE it's only 5%, it's not an "undue burden." In other words, if a majority of people aren't affected by a statute, it's not an unconstitutional undue burden. That to me is the key to the most troubling aspect of his judicial philosophy - what it overlooks is the broader purpose of the constitution... to protect the rights of ALL individuals, not just the majority. So he does address the 95%... but while the majority recognizes that a severe burden on 5% is constitutional, he shrugs off the 5% as an insignificant number, forgetting it represents individuals who are entitled to equal protection of the laws.

Thought that might have been what you were getting at too :)

Mark said...

henry:

Yes, I agree that the system of having judges to decide what our fundamental rights are is imperfect. But it is nevertheless much better than have these rights decided in the political system which is subject to animuses, phobias, pandering to electorate, special interests, etc.

You said:
"The reason, as a social liberal, I support originalist (not necessarily conservative) judges, is three fold. First, I want the enumerated Constitutional rights we already have to be protected. Second, if judges get it wrong, orginalist judges can be held to account. They can't duck into the thickets of abstruse legal theory. Finally, if the culture wars must be fought, I want them fought in the public forum, not in the courtroom. "

Nobody disagrees with your first point.
Second, originalist judges can duck as easily as non-originalist ones. Who knows for sure what were the understandings of white anglo-saxon men when the Constitution was adopted? If the understandings were different among different people, how do we know who was right? There are many other valid criticisms of originalist theory: i.e., why should it matter anyway what the understandings were, what about the issues which didn't exist at that time; what about the fact that the society matured; where in the Constitution it says that it should be always interpreted in accordance with its original meaning, etc etc
And if we accept that the goal of law is to ensure the most fair and just outcome, then it's clear that outcomes mandated by the originalist theory: i.e., death sentence for 7 year old is constitutional; segregation is constitutional, etc are anything but fair and just.


Third, and finally, "culture wars" must not be fought at all, because "culture wars" are misleading term in itself. Culture wars are an invention by bigots who cannot accept the principles of privacy and equality that the Supreme Court, at least so far, protects. Nobody is restraining legislatures from doing what's legal, it's just it cannot do what is illegal, i.e. disregard our fundamental values and rights.
The fact that these rights are not explicitly written in the Constitution does not mean they don't exist.

Mark said...

Madcat,
Exactly. I just didn't have the time to go into it as deeply as you did. I agree with you 100%.
Thank you!

madcat said...

Icepick,

I agree that the Ninth Amendment, because of its open language, allows for different interpretations. As Althouse wrote, its because of the broad framework of the Constitution and lack of specificity in regard to each and every right contained therein that judges DO have room to make judgments and interpretations of the law. With the Supreme Court, of course, being the ultimate arbiter, per Marbury v. Madison.

My main point is that judicial philosophies that espouse the protection of *ONLY* enumerated rights are neither originalist nor true to the text of the Constitution.

Not one of us is happy with all the results of the Court's interpretations of which rights are protected by the Constitution. As it should be, perhaps. But whether the Court has the authority to answer such questions in the first place -- that's the crux of the debate.

And arguably, the question was answered with the Court's very first case determining its limits and jurisdictional powers, Marbury v. Madison. From an originalist perspective, the Court's authority to determine which rights are protected by the Constitution and to overturn legislative acts that violate such rights (including those unenumerated) is really pretty indisputable.

Sloanasaurus said...

Mark said..."Society can certainly regulate incest marriages, bestiality, etc. But society cannot regulate private adult consensual sex because society has no legitimate interest in regulating it...."

This comment restates the obvious concern... who is it that should decide that society has "no legitimate interest in regulating private adult consensual sex?"

If a society enacts a consitution which, does not enumerate a freedom against regulating private adult consensual sex, and then 75% of the people state they would vote to regulate private consensual sex, how is it that a judge can decide all of a sudden that "society has no interest in regulating private consensual sex."

Such a notion is ludicrous. Judges cannot just decide on a whim what is right and what is wrong - this is moral deprivity of the worst kind.

If you allow judges to decide these issues, then judges can decide anything....a judge could decide that society has no interest in regulating sex with children or a judge could decide the government has no interest in regulating private economics and strike down socialism or a judge could ban christmas trees from the home, because they violate the right of the trees.

madcat said...

Mark,

My pleasure. It was your eloquent earlier comment that drew me into the discussion in the first place, so thanks for that :)

But now, sadly, it's back to work for me.

madcat.

L. Ron Halfelven said...

Not one of us is happy with all the results of the Court's interpretations of which rights are protected by the Constitution. As it should be, perhaps. But whether the Court has the authority to answer such questions in the first place -- that's the crux of the debate.

No, that's a non-debate. The crux of the debate is whether the Court has been exercising its undisputed authority in the right way.

John(classic) said...

Isn't this discussion losing the concept of what an attorney does?

I am proud of the legal work I did in some cases even though my private opinion was that my client was scum whose legal position, that I advanced, was wrong.

That comes with the job. Lawyers promise within the bounds of professional ethics to represent their clients as well as they can.

So the fact that Alito is proud of his contribution to representing the government's position doesn't mean that he thinks the government's position is morally correct or even fom the differing perspective of a judge legally correct.

Having said that, I think it is offensive to the whole legal system to make onbe's views on one difficult debatable issue be a determinant of whether one can be a SC justice or not.


Every Supreme Court justice, I am sure, has many points of disagreement with my view of the world and the constitution. Were I a senator, ought I vote against them all?

Mark said...

Sloan:

Of course, judges can decide what is LEGITIMATE state interest.

Take your analogy to the extreme, imagine 90% of the society decides that private consensual sex between adults is punishable by death. In your view, it would still be perfectly constitutional since it is the "society" that decided it. In my view, judges should be able to struck down this ludicrous statute as being blatantly unconstitutional because there's no LEGITIMATE state interest.

Your beef is that judges het to decide what is legitimate. Well, you may be surprised that judges engage in such inquiries very frequently since long ago. As madcat explained, Marbury v. Madison established that courts get to decide whether a law comports with the Constitution. There are different standards of judicial review (depending on the kind of law), but even under the most lax standard of review, the law must have a legitimate purpose. It is judges (court) who decide whether this requirement was made.
In other words, you would change the law has operated since Marbury v. Madison because you don't like particular outcomes of the cases.

I have a solution. If you think a court was mistaken, utilize the democratic process and pass the Constitutional amendment overruling the Court. It has been done in the past and it works.

Mark said...

John,

No, of course you should not vote against a judge if you disagree with him on some issues. But when you reasonably think that this Justice will actively work to move the law to take away the rights that we came to take for granted, to basically roll back the positive achievements of the Warren court, to eliminate the wall of separation of church and state, then yes, by all means you should vote no, if these issues are dear to you.

Icepick said...

Mark wrote: I have a solution. If you think a court was mistaken, utilize the democratic process and pass the Constitutional amendment overruling the Court. It has been done in the past and it works.

In all seriousness, why wouldn't this line of arguement apply to "your side" as well? Especially since a Privacy Amendment would accomplish most of your stated aims?

Henry said...

I don't think originalists can duck as easily as non-originalists. The very nature of the claim is one of checkable deduction. The originalist, in fact, does what every judge is supposed to do -- look at the legal text, check the legislative record, and create a judicial ruling consistent with the same (not necessarily in agreement with the same, of course).

If an originalist claims to deduce something from legal text that can't be supported by the text or any historical understanding of its meaning, the originalist has no fall-back and loses credibilty.

In contrast, a general proposition that fundamental rights and principles can be unveiled by the supreme court on an as-needed basis is not checkable. It is a circular argument: "X is a fundamental right because I say it is a fundamental right. Y was the right decision because it was the right decision to make."

Nothing stops any Supreme Court judge from making erratic personal judgements into his or her dotage, but I'd rather see judges appointed that pretend to more objectivity.

wildaboutharrie said...

Devil's Advocate here, Mark, I skimmed Alito's dissent in Casey and it seems to me he's not saying that small percent doesn't matter, but that the plaintiffs never offered enough info to determine how many or how few women would find the requirement to be an undue burden.

"Thus, the plaintiffs did not even roughly substantiate how many women might be inhibited from obtaining an abortion or otherwise harmed by Section 3209. [FN5] At best, the record shows that Section 3209 would inhibit abortions ” ‘to some degree’ ” or that “some women [would] be less likely to choose to have an abortion by virtue of the presence” of Section 3209. Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O’Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting). [FN6] And even with respect to these women, the plaintiffs did not show that the impact of Section 3209 would be any greater or any different from the impact of the notice requirement upheld in Matheson. Consequently, the plaintiffs failed to prove that Section 3209 would impose an undue burden."

perry said...

"While I am not sure I agree with the outcome of that case, the court, based on precedent, upheld the local governments' rights to exercise eminent domain with respect to blighted areas. Now, should have the Court given more protections to private property owners? Perhaps."

Mark - quite the contrary. you sound somewhat eloquent and educated on issues but regarding this case Kelo had NOTHING to do with eminent domain vis-a-vis the finding of blight. This case was unique if and only if for the reason that the SOLE rationale given for the eminent domain was for economic development and not to cure a blighted area.

And the justices who followed the reasoning (rightly or wrongly) that a 'public use' constitutes giving a redevelopment authority bankrolled by a large corpration the right carte blanche to take someone's property because it generates more taxes.. Those were all the 'liberal' judges.

So the answer is no - I wound not feel more comfortable living in a world dominated by this world view.

Mark said...

Icepick,

It would apply to my side as well.
My point is that we should let courts operate the way they have operated since Marbury v. Madison.

If a court did not find a fundamental right where it should have had, we will have to pass a constitutional amendment.

But in cases where this right has been found (Griswold, Roe, Lawrence, etc), don't take it away through "losing" the rights which were found, pass an amendment, if you can, that these rights don't exist.

Jacques Cuze said...

Mark,

Nice try, but this is an echo chamber here, and we like it that way.

Take this to the huffpo

Mark said...

Henry:

You perfectly summed your own post as:

"Nothing stops any Supreme Court judge from making erratic personal judgements into his or her dotage, but I'd rather see judges appointed that pretend to more objectivity."

I'd rather see judges who don't "pretend" (i.e., falsely seem) to be objective but who share my broad philosophy that the law's overriding purposes is to ensure that the society functions in as just and as fair way as possible. To achieve this goal, judges have to look at the whole range of factors, including, but not limited to original understanding, the effect of the law on the society, etc.

My attitude is similar to Justice Breyer's:

Judicial approaches that cling strictly to the Constitution's text, he contends, have "a tendency to undermine the Constitution's efforts to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively." Breyer agrees that the Constitution's democratic purposes demand judicial modesty and restraint. But he also regards them as representing "a source of judicial authority and an interpretive aid to more effective protection" of both individual freedoms and democratic participation. In other words, judges should consider how different readings will affect American democracy and, all things being equal, choose interpretations that make it function more effectively.

Mark said...

harrie:

Still, from this opinion you can see that Alito even refuses to consider the negative effects of requiring spousal notification in 100% of the cases. Planned Parenthood may have needed to compile a better record of difficulties that this law posed for women, but I think that if the record was enough for such radical feminist judges as Justice O'Connor and Kennedy, it was probably good enough record.

Icepick said...

Lost in all of this discussion is the idea of governmental rights (read: Authority) being created by the SCOTUS, particularly with regards to enforcing or abrogating individual rights. My earlier example of campaign finance laws would be one.

But let me take one that pretty much everyone will be able to agree on, at least as far as the greivance goes: Public school segregation. I will assume that everyone here agrees that racial segregation in public schools is wrong. Given that, what power does the federal government have to remidy such segregation, given that it takes place at a local level?

Should the government (unless otherwise stated, assume 'government' means federal gov) simply be able to strike down local provisions that enforce segregation? Should the government be allowed to pass legislation that would enforce a more just outcome? Should the government be permitted to use its executive authority to take over the running of the district? Do the COURTS have the ability to take all of these decisions out of the hands of any level of elected government? In other words, do the courts have the right to abrogate all legislative and executive authority on this matter?

As best I can tell from your position, Mark, the answer is yes to this last question. (If not, please correct me.) In which case, we have ceded all rights to an unelected judiciary.

This is why I look for a narrower reading of the constitution from the courts. It's not their interpretation of individual rights that worries me, it's their interpretation of governmental rights that scares me.

Another example, this time not addressing a violation of other recognized(!) constitutional rights: consider Gonzales v. Raich. Here the SCOTUS determined that the Commerce Clause allowed the federal government great authority to pry into individual lives. Please note that the Ninth Amendment did not apply to the right of Angel Raich to get stoned for medical purposes. Also please note that it was "your" side (plus Scalia, noted with annoyance) that allowed for this expansive view of governmental rights.

These issues are not simple, nor do they allow for simple categorical statements about "right-wing idealogues." There's more than a little wrong with the "left-wing idealogues" as well, and neither side nor center is without blame.

Henry said...

But in cases where this right has been found (Griswold, Roe, Lawrence, etc)...

This looks like a circular argument to me. Roe is a right because the right has been found.

Consider that an orginalist overturning of Roe is not the worst thing that could happen.

While originalists wish to return the question of abortion rights to the political process, a rights-based conservative could easily invent a fundamental right for the fetus to be carried to term. Social conservatives could then argue, that since this "right" has been "found" it can't be taken away.

Mark, I just don't have the trust that you have that fundamental verities are always going to come from liberal judges. I'd rather they all stick to facts and texts.

Mark said...

Perry,

You are right about Kelo; in the sense that it did not require blightness to be found. Nevertheless, this is the case which relied on 100 years of precedent; which deferred to the judgment of local government.

In other words, you can't have it both ways: complain of judicial overriding the will of the people in cases of abortion or sodomy ( I am not saying you are complaining, but many are) and require judiciary to override the will of the people with respect to eminent domain.

The proper response to Kelo was to have state legislatures pass laws relating to eminent domains, which is exactly what is happening.

L. Ron Halfelven said...

But in cases where this right has been found (Griswold, Roe, Lawrence, etc), don't take it away through "losing" the rights which were found, pass an amendment, if you can, that these rights don't exist.

Why? The removal of previously recognized rights is just as much a part of "the way they have operated since Marbury v. Madison" as the coining of new rights-- unless I failed to hear about some New Deal amendments repealing the Lochner-era rights of business.

To put it another way: if the idea that there was a right to abortion in 1973 but not in 1972 doesn't bother us, then why should the idea that there is a right to abortion in 2006 but not in 2007?

Henry said...

Mark -- I used the word "pretend" on purpose. For argument's sake I am willing to be cynical about any judge's objectivity.

Yet, when a judge claims an objective standard, they can be intellectually held to that standard. Even if they are faking it. Not so when they don't.

wildaboutharrie said...

OK I'm wading through the Riley dissent. The left-hand thing is a bit different from how it's being represented, IMO. He's saying that just because the last 5 out of 6 presidents have been left-handed, which is a statistical anomoly, doesn't mean people vote on handedness. His point is you can't assume the African American jurors were dismissed solely on race and you have to look at the other factors. Other factors were given for the dismissals, including a potential unwillingness to impose the death penalty and a work conflict.

I'm still looking into this one, but I'm not there yet either way, maybe others have input...

These people write a lot, I need Cliffs Notes.

Mark said...

Icepick, good thoughtful argument again.

Let's take your public school segregation example. As we all agreed, it is wrong. You say:

"what power does the federal government have to remidy (sic) such segregation, given that it takes place at a local level?"

If this segregation is found to violate Constitution, then federal government not only has power but MUST to step in and remedy such segregation. Therefore, the first step is to find out whether such segregation is constitutional or not. Note that it is not the same question of whether it is right or wrong. There are many wrong things which are nevertheless perfectly constitutional.
So, the first step is for courts to find out whether this segregation is constitutional.

You say:

"Do the COURTS have the ability to take all of these decisions out of the hands of any level of elected government? In other words, do the courts have the right to abrogate all legislative and executive authority on this matter?"

But this is quite misleading. Courts have the authority to decide whether the segregation in question is constitutional or not. If Courts decide that it is, then the case is closed and it's all up to state governments. If, however, Courts decide that it is not constitutional, then it becomes a constitutional obligation on both state and federal governments to remedy this situation. If the Court later determines that their actions did not bring the situation to comport with the Constitution, the Court can require that additional actions be taken.

It is not "abrogation" of all legislative and executive authority, it is making sure that Constitution is not violated and enforcing the decision.


Gonzalez v. Raich is quite different case. There, the main question regarded the reach of the federal government under the Commerce Clause. Six Justices (4 who usually take the expansive view of the Commerce Clause and 2 who usually take more restricted view (Scalia and Kennedy) reached the decision that Congress properly exercised its authority. There was no argument that STATE could not regulate private marijuana consumption for medical purposes; i.e., there was no argument that a privacy right was violated (at least, to the best of my knowledge). So, unless I am missing something, this case has dubious relevance to our discussion of proper role of courts vs legislatures.

Icepick said...

WildAboutH, now you see why Ann's overriding demand of a SCOTUS nominee is the ability to write well, juducial philosophy be damned!

wildaboutharrie said...

I say write well but concisely. Sheesh. Toddler waking up, time running out...

wildaboutharrie said...

Re: Doe, the warrent was to search all occupants. There was also a box for the names of those to be searched and only John Doe was there, with descriptive info. The officers said there wasn't room in the box to write more names, so they only put the name of the "target", but since the warrent stated that they would search the premises and all occupants, they felt they could. Alito said even if it HADN'T said that, a reasonable reading of the warrent would allow for the search of the wife and daughter. I think that goes too far, but the fact is the permission was in the text of the warrent.

Interesting.

wildaboutharrie said...

Now if only pst314 would answer my question in the patriotism thread, I could sleep tonight.

Icepick said...

It's not just a discussion of courts vs legislatures that we're having. It's about the proper role of the courts in our government.

Your contention, as best I can tell, is that the courts, SCOTUS in particular, have the power to expansively interpret the constitution.

My contention is that this is a dangerous practice, regardless of the outcome of any individual decision, because this view allows for an expansion of governmental authority.

Raich is, to me at least, a prime example of what I fear: The federal government's authority be extended on a rather flimsy premise. If the Commerce Clause can justify the Feds breaking into Angel Raich's house in search of some home-grown home-smoked, what else can be read into the constitution?

Mark said...

"Why? The removal of previously recognized rights is just as much a part of "the way they have operated since Marbury v. Madison" as the coining of new rights-- unless I failed to hear about some New Deal amendments repealing the Lochner-era rights of business.

To put it another way: if the idea that there was a right to abortion in 1973 but not in 1972 doesn't bother us, then why should the idea that there is a right to abortion in 2006 but not in 2007?"

I think Lochner can be distinguished because there was a general consensus in the society that there was no "right to contract" as found by the Lochner court. In the abortion debates, if there's any consensus, is that Roe v Wade should not be disturbed.
Law is partially about human expectations. If the society came to rely on Roe as settled law, you better have very good reasons for overturning it. Simply disagreeing with the Roe court's decision is not enough, I think. The difference with Lochner is that it did not create any society's expectations; on the contrary it flied in the face of the people's will.

Mark said...

harrie:

Wasn't it in the attachment to the warrant as opposed to the warrant itself?

wildaboutharrie said...

Actually the way I'm reading it, the paper with the box with John Doe's name is attached to the warrent...

Icepick said...

And apologies to both Mark and MadCat for not addressing all points. Some I don't have an opinion on, some I do, and here and there I need to think about an answer, which will probably never be posted. There's just too much to discuss! Nevertheless, I am enjoying this conversation.

Mark said...

icepick:

I think the statement about court's expansive interpretation of Constitution conflates a) court's finding rights which are not explicitly in the Constitution (i.e, privacy) and b) court's finding that Congress has expansive power under the Commerce Clause.

(a) and (b) are not the same and they don't flow from each other. The Court may refuse to find any unenumerated rights in the Constitution and still find that the Commerce Clause gives almost unlimited authority to Congress. Vice versa, the Court may find unenumerated rights and at the same time, read the Commerce clause restrictively.

wildaboutharrie said...

Casey is interesting to me in light of Roe not in that it puts a burden (or not) on the woman but in that it gives the husband an interest in the fetus. Before the husband should have an interest, the fetus should have an interest in "itself"...

Al Maviva said...

Ironic, that libertarians would cheer for the eternally expansive "constitutional right" to abortion, a right found nowhere in the text but which has a trimester framework that now extends to the elimination of mostly birthed babies - the longest first trimester in the world; but at the same time boo the massive expansion of the federal police power and the federal micromanagement of intrastate commerce power.

Neither the claimed right nor the alleged powers are found in the constitution, nor can they properly be said to be implied by it. Both came into existence through the same mechanism - the Ipse Dixit clause, which Chief Justice Marshall read into the Constitution. As long as judges were a little modest, it worked. But when judges undertook to usurp the roles of the other branches of government, the system stopped working properly. Now we have the courts inserting themselves into foreign policy. Why have a president or senate? Ahh, to take care of the minutae of the budget. Give it time; the courts will want to take over that function too.

The irony lost on most partisans is that the process of judicially making up new limbs and organs of the Constitution is all of a piece. The same weakness that causes a judge to make up a new right, is the same weakness that makes the same judge recognize a heretofore unheard of federal power. It's a willingness to stray from the text of the constitution and the statutes, and the hubris to arrogate power to the bench, taking it away from the people, their elected representatives in the states, and the Congress. It presumes a wisdom in the legal profession that doesn't seem to be there.

A pox on both their houses. Give me an inartful judge who would just as soon devolve power to the states, or to the people, or God forbid, to Congress itself.

Icepick said...

Mark, the Court can indeed be restrictive in one case but expansive in another. It does seem, however, that an expansionist view of one coincides with an expansionist view of the other with statisically significant frequency.

You also wrote: Law is partially about human expectations. If the society came to rely on Roe as settled law, you better have very good reasons for overturning it. Simply disagreeing with the Roe court's decision is not enough, I think.

I dare say that thinking that abortion is deeply immoral (which is the view of most who want Roe overturned) might well constitute a good reason.

wildaboutharrie said...

Mark, you may not have noticed that I line up with you a bit politically, but what I'm noticing here is that if you go deeper into Alito's decisions, there's more going on than is often being presented.

Thanks for the back-and-forth, off to walk the babies.

Mark said...

icepick:

Well, correlation is not a causation. And you yourself recognize that some hardcore justices who refuse to find unenumerated rights (i.e. Scalia) occassionally join the expansive reading of the Commerce Clause (Raich). Vice versa, some justices who find unenumerated rights (O'Connor) have pretty restrictive view of the Commerce Clause.

Being morally opposed to abortion is not enough because the vast majority of others disagree.
If it was universally recognized that abortion is a sin, then your point would have been valid. However, given enormous differences of opinion on this issue and the fact that about 2/3 of the people want abortion legal in some circumstances, it is not enough to be morally opposed to abortion to overturn the settled law.

Nobody is preventing people who are against abortion from persuading other citizens to adopt a constitutional amendment outlawing all abortions.

Mark said...

wildaboutharrie:

I do notice it and I noticed it in our earlier back and forth about Iraq as well ;)

You are right that if you go deep into cases, there's more than appears to eye. However, don't you get an impression that he's a very very conservative judge? I hope that you're right and my fears about him are misplaced. But somehow I think my chances of being right are greater.

Good luck with the babies!

L. Ron Halfelven said...

I'm disoriented by Mark's sudden lurch into majoritarianism. I thought "a general consensus in the society" was the horror from which judicially granted rights were supposed to save us; now all of a sudden it's the precondition without which rights can be treated as disposable.

How much reliance is there on Roe, really? Does anyone other than abortionists base any important decision on the possibility that Roe might be repealed next year, and some state law restricting abortion passed (after much democratic debate) the year after that?

Mark said...

Thanks, icepick and everyone else for good discussion. Now I need to get back to work: IP law cases. Even if they are not as interesting as this debate :)

Have a good day, everyone!

Mark

Sloanasaurus said...

Roe v. Wade is not well settled law. Neither was Plessy vs. Ferguson, which survived 60+ years before being overturned.

The fact is that that Liberals use the Courts to push through their own agendas which are not supported by a majority of the population. Liberals consistently argue that a majority of the population supports a right to abortion, yet this is true only when you add in a bunch of restrictions in reduce the age of the fetus.

There would be no need for Roe v. Wade if liberals had stuck to traditional democracy. Why not lobby the states to grant abortion rights and support candidates who will vote for it. I have admitted on this board that I would vote for abortion rights (with more restrictions of course), but supporting liberal activism to achieve such an aim is gross. Activist judges like Blackmun, Brennan, etc.. violate my rights to effect change in the society I live in.

I don't get why liberals mistrust democracy so much... it's because they think that the populace, which usually slants more traditional, is stupid. They won't even tell the truth to their own constituents, that overturning Roe would not end the right to an abortion.

wildaboutharrie said...

Mark, politically conservative, yes. Probably he does strive to be a "conservative" judge also, but, sure, there is probably some spill-over.

I don't know who should be worried about him, if anyone.

For the record, I think the left is way too hung up on abortion. (Disclosure: I'm a pro-life feminist.)

perry said...

"You are right about Kelo; in the sense that it did not require blightness to be found. Nevertheless, this is the case which relied on 100 years of precedent; which deferred to the judgment of local government."

Mark,

Again - the use of eminent domain to justify economic development related redevelopment is fairly new. All within the last 20-30 years max. Precedent for eminent domain for public use or for controlling blight does in no way contribute to the legitimacy of eminent domain for purposes of higher tax rolls.

And to tie this into the other section of your argument - You say that its OK for the local government to decide how it likes to operate without judicial override when it comes to Kelo and issuance of eminent domain - but I bet you were thrilled when the supreme court knocked down Texas's anti-sodomy laws. When is it that the states and localities are to be trusted with their own lawmaking - Only when the laws are laws that you like?

Thats just not a good enough litmus test.

Robert said...

Regarding the abo0ve discussion of the 9th Amendment, it protects only those rights the people enjoyed prior to the ratification of the Constitution. Hello, originalism. Clearly, abortion not on the list.

madcat said...

Wow, my copy of the Constitution must be missing a few words. I sure don't see anything in the text of the Ninth Amendment limiting it to the protection of rights that existed "prior to the ratification of the Constitution."

Nevermore said...
This comment has been removed by a blog administrator.
Nevermore said...

Well, Alito has done it now. He's white, male, *and* he's stated a view that half of Americans agree with and the other half disagree with.

Of course, factually, he is correct. I wonder if that matters.

http://nevermoreblog.blogspot.com/

Icepick said...

MadCat, are you saying the Founding Fathers were down with desegregation, sodomy, and a woman's right to choose? Or vote, for that matter?

Clearly the Ninth Amendment wasn't as expansive originally as you now interpret to be, or the above issues wouldn't have been settled in the last 100 years.

Aspasia M. said...

I always join these discussions way too late. I have to start reading blogs during the day.

For any libertarians reading this comment, I've got a question -- Do you support SCOTUS overturning any constitutional right to an abortion at any time after conception?

I ask because frankly, I'm confused by some of the public political discourse on Alito.

There seems to be a reluctance to believe that Alito would vote to invalidate any such constitutional right.

Is this reluctance part of the "hide the salami" strategy -- let's talk in code for the political game aspect of it all -- or are libertarians conflicted about how you would like him to vote?


Althouse had a interesting comment a while back about the different implcations between the court enumerating a "new" fundamental liberty, and the court taking away a right that has been recognized as a constitutional liberty.

We can talk about this on a theoretical level, but if SCOTUS removes a right that was supposedly a "fundamental constitutionally recognized liberty" I think there will be some pretty serious blowback.

madcat said...

Icepick -

Forgive me, I'm writing this first thing in the morning on no coffee, it's a full day for me and this response may be all I have time for today, so I don't have the luxury of time or energy to give the full response I'd like to, but...

You're asking the wrong question. Defining a right in terms of a specific act (e.g., sodomy) is misguided and shows a lack of of appreciation for the broader liberty interest (and traditional support FOR broad liberty interests) at stake. See the Lawrence opinion on why the right it affirms is NOT a "fundamental right to sodomy," mislabeled by Bowers, but something much broader and tied to the historical traditional respect for liberty interests that encompass protecting individuals in their autonomy (yes, choice) in their private lives.

Tradition, the Court has made clear, is the starting point, but not the ending point in looking at whether a right is protected by the constitution. That said, there is much evidence of a strong constitutional history of protecting individual autonomy in personal life choices, and a broad and equal liberty for all citizens.

That African Americans and women were not, however, considered full citizens at the time the Constitution was written is a sad reality. Which WOULD be a big reasons to question originalism as a fair approach to constitutional law, except for one thing: the Founders DID believe in an evolving body of constitutional law allowing for the greater accomodation of equal rights over time as society becomes more enlightened. See my earlier Jefferson quote (+ I could dig up many more such quotes, but for lack of time, space, etc.).

As Chief Justice Roberts explained in his congressional testimony, the right to privacy is guaranteed not JUST by the Ninth Amendment, but by many other provisions of the Constitution as well.

To the extent that the Bill of Rights was not, at the time of its ratification, intended to extend to women and African Americans equally, the Fourteenth Amendment extends the guarantees of the Ninth Amendment, the implied rights therein, and the most express fundamantal rights found throughout the Bill of Rights (including privacy, which, again, Roberts described as express, not just implied) to ALL citizens of the states, equally, helping us, in Jefferson's words, shed the coats of our barbarous ancestors (referring to his own generation, knowing that he and the rest weren't omniscient and that future generations shouldn't be bound by their limited understanding of rights. See also Jefferson's records showing that he hoped future generations WOULD overthrow the institution of slavery...).

There is a powerful constitutional tradition of protecting individual liberty against government intrusion... indeed, it's the primary basis of our entire constitutional system. How that tradition manifolds in specific generations may change over time, but this is how the Founders wanted it... they never meant for us to be stagnant, trapped in the mores of their generation.

madcat said...

(typo in the above... that should have been "more express rights" not "most express rights"... worth correcting, different implication)

L. Ron Halfelven said...

Though I have no idea why they're aimed specifically at libertarians, I'll try answering Geoduck's questions:

I do favor overturning Roe; I find it clearly mistaken, and with only the weakest possible claim to stare decisis. Whether Alito will cooperate I don't know-- not because of any confliction or political considerations on my part, but because history teaches the difficulty of predicting what any nominee will do once on the Court.

If the dread day comes, I expect it to be pretty close to a political non-event, with the laws passed afterwards going little beyond the laws passed beforehand; a notification law here, a consent law there, partial-birth abortion bans everywhere. There's simply not enough of a constituency for anything much stronger, which is fine by me.

Icepick said...

dqpguMadCat, I think we've reached the stage where we're talking past each other, sadly. I was not implying a right to sodomy, but rather pointing out that arguements of original intent do have their limitations.

I am not an originalist. I just believe in a relatively narrow focus for the constitution. It is not a bible, with the answers to all problems. Nor is it a guarantor of all rights, although some rights are guaranteed. It is a political document used to set out the basic nature and function of the federal government, and the relation between that government and the states.

As such, I want the basics displayed clearly and succinctly. I want the main guarantees to be those that are basic for poliitical liberty: Speech, assembly, freedom of association, property rights, and the means to defend them.

Over time, it has been necessary to add to the list so as to enfranchise women and minorities (thus guaranteeing their political rights), to end slavery, etc. (Also there have been procedural changes, for example on the nature of how senators are elected, and how the Electoral College works.)

To me, the most eggregious uses of the constitution have been those which attempted to set social policy, most notably on slavery and for prohibition of alcohol. These are matters to be settled by the polity, and it's why I am opposed to mucking up the constitution further with social policy or for even more frivolous reasons. An example of the first type would be an anti-abortion amendment, and an example of frivolous changes would be the Flag Burning Amendment, which has to be the dumbest proposed amendment in the nation's history.

And it's for this reason that I don't like judges conjuring new rights out of thin air and sophistry. You want a right to privacy? Fine, get an amendment. I'd be for it, depending on the wording. But I don't think one is there, and being dependent on judges who are far removed from the political process is worrisome in the extreme. What they can infer into existence,, they can infer out of existence.

Oh, and someone asked about having rights removed. I have one, although not removed so much as curtailed. How does one reconcile the Second Amendment with various local ordanances banning gun ownership? (see NYC and Washington DC)

Aspasia M. said...

This is an interesting discussion. I asked the question about the response to rights taken away, because I'm intensely curious about what the lay reaction will be in terms of politics and in terms of the wider societal response.

I think there is a lot of political intensity surrounding the debate.

Could you imagine what would happen if SCOTUS determined that Americans had no rights to own a gun?

We are speculating that SCOTUS will take away a fundamental liberty that lay people have integrated into their wider view of popular American rights. Wow. I don't understand why anyone would think this will be a political or social non-event.

L. Ron Halfelven said...

Easy come, easy go.

Aspasia M. said...

Paul,

But you don't seem to think that SCOTUS would overturn first trimester abortions for adults, right? (I'm referring to your discussion of incremental changes about parental notification, ect.) Let me know if misunderstood you.

My original question asked if readers thought that Alito would overturn the right to an abortion in the first trimester for adults.


I'm talking about that situation. I asked because I'm interested in the popular conception of legal rights. Specifically, in this case, I'm interested in how Americans might react to the removal of this specific right.

There's an interesting article by a legal scholar (Elizabeth Clark) about the popular conception of bodily rights (physical beating, slavery, ect.) that developed in antebellum America. This lay conception of legal rights grew in popularity during this era and influenced the abolition movement.

That's my interest area: What is the popular conception of legal rights, and in this case, what happens when one of those rights is taken away by SCOTUS?

L. Ron Halfelven said...

I've been assuming for purposes of this discussion that the Supreme Court strikes down Roe outright; all my speculations have been about what legislatures would do granted that discretion. As you see, I don't think they'd do very much.

The Clark article sounds interesting-- you could make a pretty good case that the public reaction to Kelo draws on the sort of "folk Constitution" your description suggests-- but I don't see what it has to do with a "right" imposed in top-down fashion by the Supreme Court.

Greg D said...

Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision.

Hmm, so what were the "ambiguous" "texts and precedents" that lead to Roe? To getting rid of the death penalty for those under the age of 18? For Lawrence v. Texas?

I think you've portrayed a bit of a straw man in your argument. It's certainly possible to be a conservative judicial activist. I don't know of any conservatives who would disagree with that.

What it's not possible to do, IMHO, is to believe in a "Living Constitution", and be an honest judge, as opposed to being a political advocate.

Evidence offered in proof: What is the functional, practical, difference between saying "The Constitution is a Living Document", and saying "The Constitution means whatever 5 members of the Supreme Court think they can get away with saying that it means"?

The answer is that there is no difference. And once you've granted "judges" the power to act that way, you've completely trashed the concept of a written Constitution.

We have a long, drawn out process for Amending the Constitution, for two reasons. The first is to make it possible to change the document when necessary.

The second, and equally important, is to keep the document from being changed very often, and to thus leave most issues to the discretion of the current political process.

If the current political process goes against you, that's too bad. But going to the Courts to get what you couldn't get from the political process is an assault on democracy, the rule of law, and the US Constitution.

And that's why, while it's certainly possible for there to be bad / unqualified "conservative" nominees (see Meirs), it is not possible for there to be a good "liberal" judicial nominee.

Because in todays legal culture, understanding that there's a difference between what's in the Constitution, and what you wish were in the Constitution, immediately marks one as a "conservative".

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