O'Connor reached [some conclusions liberals agree with] - as well as many conservative outcomes - using an approach to constitutional interpretation that should be as troubling to liberals as it is to her more conservative colleague, Antonin Scalia. Liberals link themselves to O'Connor's judicial legacy at the risk of losing the war of ideas before the next battle is even joined.Interesting. Lazurus must know the Democrats are only praising O'Connor and demanding that Bush replace her with someone like her to fend off a more conservative choice. I don't think they really have a problem visualizing a judge with a more stable, forceful liberal ideology capable of balancing the strong conservatives already on the Court.
The rap against liberals is that they do not care about the text or history of the Constitution and do not have any principled method for interpreting the document. Instead, they simply enshrine their personal moral choices in the Constitution under the guise of interpretation....
Liberals have tried to paper over these flaws with nice-sounding rhetoric about the Constitution's grand promises of individual liberty and the "evolving standards" that infuse them with meaning....
O'Connor has been the master of self-referential, "I know it when I see it" standards for interpreting the Constitution. ... While her malleable tests may often minimize the reach of particular decisions, they maximize the power of an individual justice at the center of the court to define the Constitution according to subjective judgments about right and wrong instead of more objective and broadly applicable principles....
Liberals do have a principled constitutional vision to set against this conservative record. This vision embraces democratic principles of governance, a strong federal role in solving national problems, and a broad but not unfettered view of civil rights and civil liberties. This vision is grounded not in personal preference, but in the ideas actually expressed in the text of the Constitution as read in light of its history, subsequent experience and precedent. A Civil War was fought to elevate federal power over the rights of states and to secure equality, procedural fairness and the privileges and immunities of citizenship to every person in this country. The Constitution explicitly grants these guarantees and it is the warrant of judges to apply them against the perceived needs of our time.
Putting forth this vision in a convincing manner, however, will require liberals to liberate themselves from the intellectual shackles of Roe. If conservatives have proven anything over the last generation, it is that a clarity and integrity of ideology ultimately translates into political power. The upcoming hearings present an ideal chance for Democrats to start to heed that lesson - and O'Connorism should be no part of their plan.
But should we buy Lazarus's additional point: that this principled liberal Justice will not support abortion rights? As we think forward to a time when a liberal President will appoint a Supreme Court Justice, can we visualize his (or her) ideal being someone who would vote to overturn Roe? Roe has such a grip on the Democrats that it is virtually impossible to imagine. I have to think liberals have already built their mental defense against this proposition and will quickly say that support for abortion rights fits squarely into a principled judicial philosophy. But maybe Lazarus is right, and the liberal cause on the Court has been doomed by an overcommitment to Roe -- a fear of any lines of reasoning that would threaten it.
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I had a chat with a friend last night whom I would consider a moderate Democrat. He didn't understand that overturning Roe would not result in banning abortion. This is the big lie perpetrated by the media and liberals. Overturning Roe does not ban abortion, it merely gives the states the right to make the decision. Of course there is no doubt you would see a bunch of little Roes in many states as state activist courts would find their own ways to usurp democracy.
Of course you don't see it explained by these groups either. Many people assume that overturning Roe will ban abortion in the United States. I am sure that groups like NOW and NARAL prefer to leave this myth in place because they know that the majority of people in the US would prefer the rule to be somewhere between Roe and an outright ban (such a compromise requires the overturning of Roe).
Kathleen: I think Lazarus is saying that a hardcore liberal textualist would have more power and persuasiveness.
Kathleen, Roe is based on the logic of Griswold, which found a right to contraception in the “emanations of penumbras” of the Bill of Rights. There the Court found a previously elusive Constitutional right to privacy, one which had gone undiscovered for the first 180 years of the Republic. In other words, it was a right made up from whole cloth, which the justices, legislating from the bench, just made up and imparted constitutional status to. The abortion rights in Roe, being an outgrowth of Griswold, could have been described as being based in a sylph-like diaphanous tendril gently wafting heavenwards from an emanation of a penumbra of the Bill of Rights. Fortunately, Justice Blackmun avoided that kind of adjectival speech, and bolstered his Griswold argument by simply fabricating a demonstrably false common law history of abortion rights.
My con law professor, one of the staunchest liberals in the world and a recognizable name in several high profile left liberal causes, laughed constantly for most of the class during which he taught Roe. He was very up front about it – he loved the result, but told us to please never, ever, ever to write anything that implausible and intellectually dishonest.
Chuck Schumer’s subsequent efforts to get Bush’s judicial nominees to swear to uphold the reasoning in Griswold is thus impossibly cynical and grotesque. Judges are supposed to be intellectually honest interpreters of the law. Swearing allegiance to the reasoning of Griswold would be reminiscent of Winston Smith swearing allegiance to the statement that 2+2 = 5. Either that, or the person who swears allegiance to the rationale of Roe and Griswold is immutably dumb and incomprehending and has no business being an attorney, much less a judge.
Griswold and Roe are nothing more than judicial power grabs, and if you swear allegiance to them, you invite the judges from my side of the political aisle to do the same thing to bring about equal and opposite results. The law is only as good as our willingness to adhere to it. When the highest court in the land refuses to follow the law and just makes s*** up, it’s unreasonable to expect anybody else to follow the law. After all, if it is the paramount job of the Court to say what the law is, and the law is simply what the Court says it is and no more (and the people and legislative branch have no say) then each man is a law unto himself, and in reality there is no law.
Sure, you can stick with Roe’s laughable, water-thin intellectual underpinnings and method if you like. But you’ve been warned.
Thankfully, one doesn't have to rely on liberals to understand the importance of the next Supreme Court choice:
"And what is that most important work [that a conservative jurist at this moment can do]? For the conservatives, the most consequential shift would come in flipping the decision on Stenberg v. Carhart (2000) and upholding the federal ban on partial-birth abortion. Either one of the Ediths would guarantee that outcome; and in my own reckoning, such a decision on partial-birth abortion would virtually bring to an end the Roe v. Wade regime. For it would send up a signal to legislatures throughout the country that the Court was now open for business in sustaining many varieties of restriction on abortion. They might be measures to require the method of abortion most likely to preserve the life of the child, or measures actually to bar abortions late in pregnancy, or abortions ordered up because of the likely disabilities or afflictions of the child (e.g., Down’s syndrome, spina bifida). Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion. Ordinary people would be drawn in to talk again about the circumstances under which abortions may be justified. And that talk, among ordinary folk, will become more and more common because those they elect, sitting in local legislatures, will be enfranchised again to pass laws and make judgments on these matters."
Via Prof. Hadley Arkes in National Review, and a more solid pro-life voice you'll never find.
How could anyone read the Constitution and the Declaration of Independence and not think that I have a right to control my own body?
Oh my! We agree on something. :)
This is exactly why I'm opposed to drug laws for most drugs and sodomy laws.
However, I am not convinced that abortion is just about me having control over my body. The right to have an abortion also gives me the right to destroy another body. I am not convinced that I should have this right.
Kathleen, if you don't have the right to maintain the ownership of your own home, why should you have the right to control your own body?
As recent cases have indicated, the state can take my child away if 'they' feel my parental health care choices are poor, 'they' can take my home away if 'they' have a better use for it, 'they' can take my land use rights away if 'they' decide an area plan (wetlands, watershed, pristine protection) is more important in 'their' opinion, 'they' can seize my car or personal property if 'they' just think it might be related to something criminal.
Why should the erosion of rights not extend to your body?
I don't support abortion except under special circumstances, but I do support your right to make your personal choice within the context of your personal moral foundation. I do strongly feel that society does have an interest in placing reasonable limits thereupon (late term or partial birth being a good example).
But the erosion of rights for mostly 'liberal' causes may come around on this one to the body itself.
Freeman Hunt: I had that debate with Kathleen B. some time ago. I think her response would be that she does not accept the fact that an unborn fetus is "another body." Instead it is part of her body.
This factual determination is more problematic than the right to privacy part of Roe.
A right to privacy is an acceptable notion of the Constitution. Certainly the Court has the justification to find this right. If they don't we should have a consitutional amendment saying so.
The Court, however, has no right to make a policy determination on whether a fetus is another body. IMHO, this is the real activism of the Roe decision. Such a determination is an objective standard that needs to be decided by society. The best place to do this is in the legislature or by referendum. If the legsilature determines that a fetus becomes "another body" at 12 weeks. Then the rights of the 12 week fetus to life would trump any right to privacy of the mother.
I think Patrick is correct.
I remember reading something Lazarus wrote at writ.findlaw.com where he strongly criticized the reasoning in Roe but suggested a similar result could be reached on other grounds.
Kathleen, it's funny how liberals throw Brown v. Board at legal conservatives, as if it were garlic tossed at vampires. Brown was decided in a similarly dishonest fashion to Roe, based on shoddy social science research that was later disproved. That doesn't mean the outcome was bad. Nor does it mean principled originalists couldn't have gotten to the correct result.
One originalist approach to Brown would be to look at the facts on the record, and the plain language of the 14th Amendment. Equal means equal, and separate but equal proved, every time it was examined, to be anything but equal. A principled originalist argument to reach the same result in Brown is "equal means equal; the practice of separation has led ineluctibly, for 90 years, to inequality, under an alleged legal standard of "equal"; therefore, to implement the 14th Amendment, equal must be interpreted as "the same" and full integration is mandated."
And if you really want to get into it, I should throw Plessy at you. Activist logic choppers came up with the notion that separate and disparate could be equal, if you looked at two separate rail cars, school houses or drinking fountains, from just the right angle. Why should the same type of results-oriented logic chopping that supports Roe, not be used to justify Plessy?
Finally, your "there is some privacy right in the Constitution" argument is a straw man. Indeed there are many privacy rights contemplated under the Constitution. Most of them are rights left to the states to protect, along with certain privacy rights protected by the First, Third, Fourth, Fifth, Sixth and Seventh amendments; along with the general security offered to common law and state privacy interests protected by due process. What isn't in the text, is a vastly expansive privacy right that extends to protect any libertine flavor of the week. Sorry, your emperor has no clothes. Honestly, read some of Justice Kennedy's opinions - when the crux of a holding is the "right to define the mysteries of life for one's self," you've become completely unmoored from the text. If you are okay with that, you reduce the Supreme Court to a mere political context for power, and we become a nation of men, not of laws. I guess I can live with it because for right now, my side has the votes. But I can't help but feel something is lost every time a justice decides to just make some stuff up to justify her personal whims.
What is interesting about Brown is that two noted legal craftsmen and analytically brilliant Justices, Jackson and Frankfurter, joined Warren's unanimous opinion. Neither was at that time in their career considered liberal.
Warren had only been on the court seven months when the Opinion was handed down on May 17, 1954. The case had been reargued December 7, 1953, two months after Warren took his seat on the Court.
Fascinating.
Re: "the recently inflated reputation of Sandra Day O'Connor"
I believe this is an effect that John Gorka sang about:
i.e., "Everyone loves you when they know you're leaving soon ".
Kathleen B: Interesting points.
I definitely think that there should be a medical exception, but I don't think that it would be quite an entangled as you described. There are, for example, many illegal drugs that are legal if prescribed (many medications for ADD come to mind). Doctors caught over-prescribing these drugs face prosecution. I think abortion could be handled in the same way.
As far as the slippery slope argument that prohibition of abortion would lead to all sorts of other pregnancy interventions, I do not agree. Even now there are no laws that force people to act in the best possible manner towards their children. I am legally allowed to be a pretty cruddy parent as long as I don't inflict outright abuse. I think the same should go for pregnancy. Also we're comparing the actual killing of the fetus/baby/whatever to not creating the optimum environment for the fetus/baby/whatever. I think that that is a large leap.
Kathleen, your habit of changing the terms of the argument, mid-course, is maddening. You need to use some follow through.
Your "principled" approach to a proper Brown decision looks suspiciously like the actual Brown decision.
Yes, except for my radically conservative, right wing notion of relying on facts about real buildings and books and distances between home and schoolhouse that were in the trial record, rather than on a single, speculative, non-peer-reviewed social science study as the basis for the decision.
I just cannot agree that opposition to government-enforced childbirth is a "libertine flavor of the week."
Abortion as a constitutional right, indeed, is no flavor of the week. It’s the long-lasting libertine champ, the Rocky Road, of libertinism enshrined as constitution. The flavors of the week are things like a Constitutional right to sodomy – it’s textual basis is so week as to be laughable, and Kennedy’s historical analysis to support the existence of the supposed right is so weak as to be disingenuous. But perhaps the best example of a flavor of the week is the constitutionally protected right to all-nude lap dances – something supposedly at the “fringes” of the First Amendment, and protected only to prevent threats to core First Amendment speech, so the Court says. This debasement of the text of the Constitution, abusing the plain language to find outrageously non-textual rights, has resulted in absurdities like campaign finance reform. Political speech once was thought to be at the core of the First Amendment protections, the thing supposedly protected by protecting the fringes. But it is now utterly restricted (and bloggers’ political speech may be next). This abuse of the plain language – insisting the framers wanted to protect live sex shows, but clamp down on political speech - leaves us with a First Amendment that looks like a donut with empty platitudes at the center, but a very fine sugar coating dressing up the substantial fringes of the thing.
Women cannot be free if they do not have the right and ability to make their own decisions regarding their health care, their bodies and their future.
Where does it say in the Constitution you can’t live in a state permitting abortion? Or that you have to have sex with faulty, or no birth control? Your argument is a good example of what Lazarus is talking about, by the way – making your entire world view hostage to Roe v. Wade and abortion politics. It makes it difficult for you to see how this one issue has warped the rest of your version of the Constitution. If one of life’s activities isn’t discussed in the Constitution, then it is supposed to be a matter for the voters to decide. If California wants to have combination strip clubs / abortion mills on every corner, fine, that’s a matter for the voters of a state to decide. If Georgia wants to ban liquor sales and declare blue laws restricting commerce on Sundays, it’s supposed to be the call of the Georgia voters. Constitutionalizing every single problem destroys democratic self determination. Ultimately, it destroys the law. The Roe framework – and you need to read the case, I’m guessing you haven’t – says that in the first trimester, the mother’s rights are paramount; in the middle trimester, the state and mother have some balance of rights, and as the baby comes to term in the third trimester, the state’s interest in the unborn child are paramount.
That constitutional right has now morphed, via case law, into a right that cannot be infringed at any time for any reason, even as a full term, healthy baby is 90% birthed, it may be killed, and the state cannot interfere. Indeed, Barbara Boxer asserted on the floor of the Senate two years ago, that what the NY Times would call a “born fetus” has no right to live until the mother decides to take it home from the hospital. Not only have the Constitution and legal process become warped, but the politics (and Boxer’s sense of decency) have become distorted too.
finally, why isn't "the pursuit of happiness" or "capitalism" just as fruity and unmoored as "the right to define life's mysteries for one's self"?
Yeah, they are fruity, but nobody is asserting them as a Constitutional right. The pursuit of the happiness is found in the Declaration of Independence, which is basically an aspirational document. It has no real legal effect. Even if it did, there are pretty clear indications of what the text meant to the framers – the right to own property, the right to engage in commerce, the general right to be free to be a productive member of society. In other words, it is encoded in the 4th and 5th Amendments to the Constitution which protect private property, in the Commerce Clause, and in the 9th and 10th Amendments. As for capitalism, there’s nothing in the Constitution protecting that, save the clauses respecting private property. Capitalism is Congress’ business.
The irony of Justice Kennedy’s expansive jurisprudence is that he claims to be reserving the right of the individual to “define the mysteries of life” for him or herself, but then he uses his power as the swing vote to define things for us. His approach is so intellectually dishonest, that I get a headache just thinking about it. And as for my personal opinions – I think it’s great if people choose to shag like bunny rabbits, booze until they drop, try to get sex in the champagne room, and leave infants out on the steppes to die of exposure as the Huns did. But I want to have a say in whether or not *my* state and township allow this behavior, and I resent the constitutionalizing of basic decisions of life that should be reserved to the individual and the individual’s community. I want a say in how things are run, and I don’t get a say when every little question in life is read into the Constitution by a bunch of geriatric lawyers who know nothing about me, or how I would live if I was permitted to vote on it. Roe v. Wade is one of the gateway cases encouraging court usurpation of our right to control ourselves and our communities, and while it sounds nice to talk about a woman’s right to choose, the activism embodied in Roe has taken away our right to choose in a hundred other areas of our lives.
Raich, anybody?
9th Amendment:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
10th Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
These two seem somewhat contradictory when you apply the incorporation of the Bill of Rights by the 14th Amendment. In pre-incorporation, the 9th Amendment was about rights that the people have against CONGRESSIONAL action. The 10th Amendment said that whatever powers are not granted to Congress, are thereby granted to the STATES. But, if the 14th Amendment incorporates the 9th Amendment to mean that the people rertain rights not explicitly listed, against STATE action, then the 10th Amendment and 9th Amendment are in serious conflict for it is illogical to have a right against a state action, for which a state has been given power to enact.
So, the issue I think is deeper than the penumbras, emanations, etc. At some point, we need to separate out the part of the Bill of Rights that makes sense under incorporation and the part that does not.
Furthermore, the reason why the Court had to reach to the penumbras, etc. of fundamental rights is because they had to rule in the context of Footnote 4 of Carolene Products (" Footnote 4: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.") Essentially, the Court had to pretend that a fundamental Right guaranteed by the Bill of Rights was in jeopardy in order to strike down Texas' abortion statute.
It's not just Blackmun, etc. who are at fault here. It is the Court starting with the New Deal which essentially stated that government had unlimited power. This led to the Court having to start defining "rights" which aren't in the Constitution.
There is no way to undo incorporation since the drafters of the 14th Amendment clearly intended for incorporation (see Rep. Bingham's speech on the House floor after proposing the amendment). But, in the context of incorporation we somehow have to square the logical inconsistency of 9th and 10th Amendments. I believe that Scalia says that the 9th has to go. I would probably disagree with him and say that the 10th must go simply because incorporation then would be a prohibition against state action (even though it's retroactive, which makes little sense... but hey, we're in constitutional la la land here), which the 10th amendment carves out an exception for.
Regardless... don't blame Blackmun. Blame the New Dealers.
There was actually a really good debate put on by Cato between Randy Barnett and Walter Dellinger on this issue. It's somewhere on Randy's webpage.
Let's start at first principles, Kathleen.
Yes or no - should judges feel free to ignore the clear text of laws, to grow the law, as it were, to ensure that the right outcome is achieved in every case before the court?
Again, it's a yes or no question.
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