Has Rudy Giuliani gotten incoherent about abortion?

Here's a NYT piece about how Rudy Giuliani is reframing his stance on abortion to appeal to conservatives. It contains a quote that I found puzzling:

“On the federal judiciary I would want judges who are strict constructionists because I am,” he said last week in South Carolina. “I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret, not invent, the Constitution.

“Otherwise you end up, when judges invent the Constitution, with your liberties being hurt. Because legislatures get to make those decisions and the Legislature in South Carolina might make that decision one way and the Legislature in California a different one.”

How is "strict construction" supposed to protect liberty, and why would it help to have legislatures in different states making different decisions about "your liberty"? The NYT article leaves us hanging -- Rudy seems incoherent -- and moves on to what he said to Sean Hannity the other day about "partial-birth" abortion and parental notification laws.

This seems to be the full context of Giuliani's statement. It adds one more sentence that made me get his point, which in fact makes sense:

"On the Federal judiciary I would want judges who are strict constructionists because I am. I'm a lawyer. I've argued cases in the Supreme Court. I've argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that's part of our freedom and when that's taken away from you that's terrible."

The meaning is none too obvious, so I'm not criticizing the NYT for dropping that last line, but it was enough to tip me off that he was talking about federalism (a subject I teach and write about).

I'm not surprised that Giuliani didn't launch into a discourse on federalism in front of a crowd of non-lawyers. But there is a constitutional law point is embedded in these few words. The idea is that constraining the scope of federal constitutional rights leaves more room for legislatures to regulate in ways that suit the preferences of the people in the difference states, and this power to make different law in different places is an aspect of freedom. The people in South Carolina might like things one way and -- look at the other state he chose to name -- the people of California might like something else.

Why is federalism an aspect of freedom? Here's a good passage written by Justice O'Connor that ties federalism to the protection of freedom (from Gregory v. Ashcroft, 501 U.S. 452 (1991)(citations omitted)):

Perhaps the principal benefit of the federalist system is a check on abuses of government power. "The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties.'" Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would suppress completely "the attempts of the government to establish a tyranny":

"[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress." The Federalist No. 28, pp. 180-181 (A. Hamilton).

James Madison made much the same point:

"In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, p. 323 (J. Madison).

One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this "double security" is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.

So Giuliani was referring -- I think -- to the idea that the preservation of the legislative autonomy of the states is an important constitutional structural safeguard that works to protect individuals. We tend to be so used to the idea that courts protect freedom by enforcing individual rights that we forget to think about how the original Constitution embodies a belief in protecting the people from the abuse of power by dividing it up.

Of course, you're entitled to be suspicious about whether federalism protects freedom. O'Connor expressed the skepticism that the history of states rights in the United States demands:

One fairly can dispute whether our federalist system has been quite as successful in checking government in checking government abuse as Hamilton promised....

By failing to explore the idea that Giuliani was talking about federalism, the NYT deprived readers of an opportunity to understand the coherence of his remark, but it also spared him a criticism. There he was in South Carolina letting people know -- if they could pick it up -- that he cared about states' rights.

The Times article, as noted, moves on to the subject of what Giuliani said about "partial-birth" abortion:

[H]e told Mr. Hannity that a ban signed into law by President Bush in 2003, which the Supreme Court is reviewing, should be upheld....

[But when a]sked by Tim Russert on “Meet the Press” in 2000 if he supported President Bill Clinton’s veto of a law that would have banned the disputed abortion procedure, Mr. Giuliani said, “I would vote to preserve the option for women.” He added, “I think the better thing for America to do is to leave that choice to the woman, because it affects her probably more than anyone else.”

Is this a contradiction? No. To say that the Court should uphold a statute is to say that it is not a violation of constitutional law. The question from "Meet the Press" is about whether, as the executive with the veto power, he would sign the law. One could think a law should not be passed -- because you want "to preserve the option for women" -- without also thinking that the law would be unconstitutional. The language "the option for women" itself suggests that he was talking about what is good policy rather than the scope of rights that courts need to enforce.

If you look at the transcript of the Hannity show, you can see this:

HANNITY: There's a misconception that you supported partial-birth abortion.

GIULIANI: Yes, well, if it doesn't have a provision for the life of the mother, then I wouldn't support the legislation. If it has provision for the life of the mother, then I would support it.

Is that inconsistent with what he said in 2000 about Clinton's veto? The bill that President Clinton vetoed did contain exception for the life of the mother: It did not apply to "a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury: Provided, That no other medical procedure would suffice for that purpose."

There's room to wriggle out of the contradiction by saying that is not a proper "life" exception, and I would cut Giuliani some slack for not going into the details on the Hannity show. What "other medical procedures" would women be forced to endure to save their own lives? Would you require a woman with a life-threatening medical condition to have a Caesarean section -- as long as she could survive it -- in order to remove a fetus that was only going to die in the womb?

The NYT article also points to a seeming contradiction about parental notification laws. Here's what Giuliani said on Hannity (from the transcript) in response to the two word question "Parental notification?":

Parental notification, I think you have to have a judicial bypass. If you do, you can have parental notification. And I think the court -- I mean, that's the kind of thing I think the court will do with abortion.

And here's the NYT:

[O]n a 1997 candidate questionnaire from the National Abortion and Reproductive Rights Action League of New York, which Mr. Giuliani completed and signed, he marked “yes” to the question: Would you oppose legislation “requiring a minor to obtain permission from a parent or from a court before obtaining an abortion.”

This is definitely not a contradiction. On Hannity, Giuliani was clearly talking about how constitutional law should be interpreted. On the 1997 questionnaire, he was clearly talking about how he would exercise his role in the legislative process.

Now, you can say, but he's running for President now, and he'll have the veto power, so what matters is how he handles federal legislation. If he would veto anti-abortion bills, shouldn't pro-lifers reject him? I think you need to see how Giuliani's various statements point to the federalism solution. Let the law vary from state to state, reflecting the different preferences of decentralized majorities at the state level. This solution depends not only on the Supreme Court's interpreting rights narrowly enough to leave room for state regulation, but also on the absence of federal legislation that would preempt state law.

If your conservatism extends to federalism, you should see why Giuliani's seemingly complicated position is perfectly coherent.

UPDATE: Andrew Sullivan agrees with me about Rudy and goes on to say that he has long favored the federalist solution to the abortion controversy. Read his whole post, but let me highlight some of it:

The South is a very conservative place. Forcing them to move more quickly on issues of basic human dignity has historically led to even worse spasms of hatred...

It seems to me that if the conservative coalition is not going to fracture completely, then federalism is its only option. That way, centrists like McCain, Romney and Giuliani can actually become Republican presidents.... Opting to use federalism as the mechanism to allow the social conservatives to support him on other issues like national security and a more competent government, while personally supporting women's freedom and gay dignity, is extremely smart politics.

I think Rudy is the best and most viable candidate the Republicans now have....

Let me flag two posts of mine from last fall about abortion and federalism: this one (responding to a lecture from Harvard lawprof Richard Fallon) and this one (reprinting an op-ed I wrote in the Wall Street Journal).

Glenn Reynolds also links and writes:

First, Ann refers to federalism's role (under the inaccurate moniker of "states' rights") as a shibboleth for anti-desegregation forces.

I agree that "states' rights" is a misnomer and use it here only to refer to the historical rhetoric. I used to think only people who didn't like federalism would use the term "states' rights" other than to call to mind the bad old days of slavery and segregation, but I was surprised back in 2000, when I participated in the (now famous) "Constitution in Exile" conference at Duke Law School, that lawprofs Lynn Baker and Ernie Young used the term "states rights" in a positive way in their article "Federalism and the Double Standard of Judicial Review." I was one of the commenters on their article -- my piece is "Why Talking About 'States' Rights' Cannot Avoid the Need for Normative Federalism Analysis" -- and I wrote:

Baker and Young boldly employ the inflammatory term "states' rights." Before reading their wonderfully assertive new article, I had thought the term states' rights survived only in the vocabulary of opponents of the Supreme Court's recent efforts on behalf of the states. "Federalism," I would have thought, is the term of choice for supporters of the Court's current jurisprudence. The term federalism conjures up more functional and pragmatic ideas about the role of the states....

But Baker and Young openly, eagerly embrace not just federalism but "states' rights." Their use of the term "rights" is not accidental. The way they would treat states corresponds to the way American law treats individual human beings when it is said that they have rights. The law protects individual freedom of speech even though that freedom will be used by persons who have hateful, ugly, or disturbing things to say; the law, however, may justify this individual autonomy on the theory that, over time, good will emerge from the marketplace of ideas. By the same token, Baker and Young are willing to take the risk that some states might do bad things with their freedom. They want protection of state autonomy and rely on a belief that in the long run what the states do with their independence will accrue to the good. Just as some First Amendment libertarians advocate a marketplace of ideas, Baker and Young might be said to advocate a marketplace of states, offering Americans a choice of fifty different cultures....

This argument for diversity -- at least in cases in which uniformity is not necessary -- is a strong one, yet its appeal inevitably will vary depending on how one answers the normative question. As long as Americans fear that states will do too much harm and too little good if left to their own devices, they are likely to prefer not states' rights, but, at most, a flexible, pragmatic federalism.

(I hope regular readers of this blog see the resonance between what I was saying there and the dispute I had with the libertarians recently -- here, here, and here.)

Anyway, you should read the rest of Glenn's post. And Baker and Young's article is really good. More on the "Constitution in Exile" notion here and here.