Roe v. My giving a damn

I've seen the phrase "litmus test" a lot lately, and it is making me think of the context (other than actual litmus testing) in which it's most frequently used: Supreme Court justices. The most common "litmus test," or at least the one most commonly referred to by that phrase, is what a prospective justice thinks about Roe v. Wade. I'm not a legal expert, but come on, get your priorities straight!

What about Raich? What about Kelo? What about a case that really matters? Abortion is going to stay legal no matter which clown is picked out of the circus to fill O'Connor's spot. So how about let's focus on, oh, the blitzkrieg of federal power into areas where it clearly has zero Constitutional authority?

If your litmus test is to see what a potential justice thinks about Roe, maybe you should just buy another bumper sticker.

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Scott, Thanks again for the

Scott,

Thanks again for the reference. I think it's in our library here, so I'll check it out when I'm over there next.

It's a fair point Rodrick,

It's a fair point Rodrick, but clearly it's controverial enough for people to rationalize opposing it. Except in the case of rape, we can argue that the woman made the choice to carry the child (or at least knew the risk) and as such it isn't involuntary.

matt

Joe, The problem is that I

Joe,

The problem is that I don't see abortion per se as a 'right'. Obviously your mileage may vary, but its precisely for that point (that there is no consensus on what even the issue is, let alone where lines should be drawn- a lack of 'public reason', if I'm remembering the Rawlsian term correctly) that it is better for the abortion debate to have actually happened and been hammered out rather than declared in toto with a (to my non-lawyer eyes) very flimsy pretense & rationale that has not since been used in any other constitutional jurisprudence (i.e. the "right to privacy", i.e. abortion and not actually privacy).

It is precisely because you and I disagree on this matter that it should *not* be left up to the justices. As Scott pointed out, the 9th is for customary rights where there is both history & consensus for their existence, not for whole cloth invention from the court.

I wouldn't know, I'm

I wouldn't know, I'm speaking from a legal perspective. If you're going to invoke the 9th Amendment, I think that's the turf you're playing on.

Scott, I suppose that I'm

Scott,

I suppose that I'm interested in normative jurisprudence. Why _should_ we interpret the 9th Amendment as protecting only those rights that have been historically recognized? It strikes me as a strange position (and I'm not directing this at you by any means as I've no reason at all to think that this is your position) to hold that as long as we've violated your rights for a long time, it's okay if we keep doing so.

You might be interested in

You might be interested in this, Joe:

http://www.amazon.com/exec/obidos/tg/detail/-/0913969370/qid=1124549711/sr=8-6/ref=pd_bbs_6/102-6279393-7548146?v=glance&s=books&n=507846

the principle expressed in

the principle expressed in the decision (if I remember correctly) was that when our ideas about rights should conflict we should always proceed on the "presumption of liberty." That seems to me an imminantly reasonable, and highly libertarian-friendly, standpoint.

I think anti-abortion laws

I think anti-abortion laws could be struck down on 13th Amendment grounds -- forcing a woman to serve as an incubator for a fetus is involuntary servitude.

I know there are factions on

I know there are factions on both sides, but the pro-choice group is vastly more influential, better organized, and better funded.

I highly doubt it. think groups like the Christian Coalition are better organized, more influential, and better funded. The Christian Right has decided to make it their big issue, and the Christian right wields about as much influence as a non-business sector wields in the US. All this, despite the cut dried position of the actual bible:

"And if men struggle and strike a woman with child so that she has a miscarriage, yet there is no further injury, he shall be fined as the woman's husband may demand of him, and he shall pay as the judges decide. But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise." Exodus 21:22-25

Abortion is the big deal because the mdeia tends to focus on polarizing issues which are inconsequential for the mainstream business consensus. Rather than have some kind of debate about something seriously controversial and worthwhile (like the Central American trade agreement, which is never even discussed during election time) we're supposed to passionately fight about whether Foetus' are people. That way we can formally participate in democracy without actually making much of a difference. Whatever.

I do strongly disagree that the right to have abortions is somehow untouchable. I don't think there's any reason to assume that. I also think the abortion Litmus test concept is a very healthy one, if only because it suggests a level of social organization and pressure that makes the government feel like they have to be responsive. It's true that there's no "eminent domain litmus test" or something conceptually, and that's too bad, but it's ridiculous to start taking these hard won things for granted, because you can damn well bet the the Government would prefer to do away with whole idea of public accountability, even if it's only on one issue.

Additionally, I'd like to mention that I think Federalism is usually a lazy argument. It's a good concept, but it usually just functions as a substitute for thinking about an issue, because as much as I like the concept of federalism (as an end result, I think societies should function much like that- The Ottoman Empire approach) I think it's almost never the right solution for issues at the moment. I can't think of a single issue on which I think it's right answer, actually.

Matt

Upholding Roe could be the

Upholding Roe could be the key to striking down a plethora of federal laws. I think ROE could easiliy be considered the libertarians' best friend if only the judges would apply the same expansive reading consistently across all the other intrusions into our personal lives.

If the constitution protects your right to have an abortion then by god you certainly have the right to use whatever medicine you like, get breast implants, or use anything else the FDA has banned.

nmg

Whence the confidence that

Whence the confidence that states have the authority to make laws restricting abortion? Certainly the 10th Amendment requires the federal government to refrain from doing anything not explicitly provided for in the Constitution. On the other hand, the 9th Amendment makes it pretty clear that there are rights other than those specified in the Constitution. If abortion really is a right, as the SC seems to have held, then state laws restricting it are unconstitutional. That’s what gives the federal gov’t the right to rule on it.

Yes, but the right was created, it seems, out of thin air. I'm not familiar with Ninth Amendment jurisprudence, but my impression is that something classifies as one of the unspecified rights if it has a long history of being protected. Sodomy and abortion are thus out. Creating rights without any restriction seems a carte blanche to let the Court rule anyway it likes.

Whatever the merits of Kelo, it's a different creature entirely, as it was a Fifth, not Ninth, Amendment case.

While I'm all for

While I'm all for decentralisation, I also think anti-abortion laws are the moral equivalent of rape, so the prospect of a transition from "hyperlenience" to a "patchwork" is one I can't really contemplate with equanimity.



But if such a patchwork does materialise, I hope the pro-choice movement will use its resources to provide transportation for low-income women in anti-abortion states to obtain abortions if they need them, rather than just spending money petitioning the Leviathan.

I think that RTL's point is

I think that RTL's point is correct, a number of states would vote to outlaw abortion the moment they had the ability to do so. I can't imagine, however, more than a handful of states doing so. Other states already explicitly protect abortion as a state constitutional right, others statutorially.

I think the vast majority would keep abortion legal but with far greater restrictions than the Roe regime, as in most of Europe. Perhaps some would use the prohibition model and let the counties decide.

In any case, overturning Roe would not result in a nationwide ban on abortion, which is the impression that NARAL et al. would have you believe.

I think that a patchwork of abortion laws varying state by state would be a better outcome than the current, hyperlenient abortion standard set in 1973. Democracy is bad in a lot of ways, but in the case of hammering out a difficult social dispute with no clear consensus, its far preferable than court fiat.

JG: I was just trying to

JG: I was just trying to point out that there are important decisions coming down from the Supreme Court all the time, and to focus on Roe and exclude all the others is silly. There is only one liberty, and it can be attacked in much broader ways based on cases that are not Roe than based on Roe.

RTL: This is conjecture, of course. I don't have a crystal ball. (If anyone does, it's you.) It's the intuition I have based on observing how much of an important issue it is for a surprisingly large (though still proportionally small) group of people, and the public's general acceptance of abortion. Not to mention the many powerfully organized pro-choice groups. I know there are factions on both sides, but the pro-choice group is vastly more influential, better organized, and better funded.

Amen, Randall.

Amen, Randall.

For what it's worth, Arlen

For what it's worth, Arlen Specter has announced plans to confront Roberts on Lopez and Morrison, which deal with the same issues as Raich. Specter's on the other side of the issue from me and most Catallarchy readers, but I'm all for its being raised publicly.

> Abortion is going to stay

> Abortion is going to stay legal no matter
> which clown is picked out of the circus to
> fill O’Connor’s spot.

I'm not sure why you say that. The support for Roe hangs by a thread in the Court right now, and if Roe is ever reversed abortion will instantly become illegal in many states across the country. I think I can say with coinfidence, for example, that if the Court overturned Roe today, there would be anti-abortion legislation introduced in the Alabama legislature tomorrow, and it would pass. (I'm not arguing for or against Roe at this point, just expressing puzzlement as to why you think a new justice will make no difference to the abortion issue.)

Jonathan, Whence the

Jonathan,

Whence the confidence that states have the authority to make laws restricting abortion? Certainly the 10th Amendment requires the federal government to refrain from doing anything not explicitly provided for in the Constitution. On the other hand, the 9th Amendment makes it pretty clear that there are rights other than those specified in the Constitution. If abortion really is a right, as the SC seems to have held, then state laws restricting it are unconstitutional. That's what gives the federal gov't the right to rule on it.

I don't think that things are quite so cut and dried as you seem to be assuming here. Your position seems especially strange given that your position on abortion seems to be that states should be permitted to make their own rules about abortion. Isn't that pretty much exactly what _Kelo_ does? States make their own rules about eminent domain; the SC just ruled on CT's laws. States that don't want to be bound by _Kelo_ can just write different laws. If you like federalism in one arena, then it seems like you ought to be stuck with federalism all the way down...even when you don't happen to like what the various states are doing.

Randall, Interesting post.

Randall,

Interesting post. Just playing devil's advocate, but where exactly did
the federal government get the Constitutional right to overturn state
laws about Abortion? I fully agree that recent rulings like Kelo and
Raich are quite important, but I think that trying to draw a distinction
between illegitimate federal usurpations that you like vs illegitimate
federal usurpations that you don't like seems a little silly.

~Jon

Joe, Beyond my competence

Joe,

Beyond my competence to teach. There are plenty of books on Ninth Am. jurisprudence, and originalism proper. Try a Randy Barnett or Robert Bork if curious.

There is something not unreasonable about interpreting the Constitution to mean what the clauses meant at the signing. Determinacy is another typical reason given for originalist interpretations.

Scott, Thanks for the

Scott,

Thanks for the references.

I agree that originalism is not unreasonable. If it were, there would be a lot fewer smart people who hold it. Consequentialist sorts of arguments for originalism (to which you allude) are compelling. But those same sorts of consequentialist arguments might also lead us to ditch originalism when it gets in the way of recognizing injustices that 18th C thinkers (however enlightened they were for the times) just didn't recognize.

That said, I'm not entirely convinced that Madison and Jefferson at least intended the 9th to conver only those rights that they already recognized as rights. It's pretty broadly worded, after all. The drawback to orininalism, of course, is that determinacy is notoriously tricky to pin down. How much confidence can we really have in the claim that, when Madison wrote X, what he really meant was _____"? We're still playing the interpretation game, only now we're trying to figure out what dead guys meant rather than just trying to figure out what rights people actually have.

Brian, The worry that I have

Brian,

The worry that I have is that there are always those who dispute the existence of certain sorts of rights. It strikes me as really pretty clear that, say, people with more pigment in their skin have the right to drink from any public fountain that they wish. It also strikes me as evident that people who have two X chromosomes have a right to own their house and to decide whom (if anyone) they will marry. Yet there are plenty who have and some who still might dispute those rights. In fact, there may well be areas of the country (I'm looking at you Mississippi) where an actual majority might dispute such rights.

I'm actually not nearly as convinced of the virtues of democracy as Rawls, particularly not the _Political Liberalism_ Rawls who invokes public reason. Deliberative democracy is about the best system we have thus far, but it still has its weaknesses, one of which is that the public doesn't always reason all that well. So I'm pretty much in favor of constitutional limits on what majorities can do. If that means that, at the end of the day, 9 really smart people get to tell me that some things violate rights however much I'd like to do those things, well, that's not an ideal system, but it's a lot better than one in which majorities trample all over minorities.

Scott, Maybe establishing

Scott,

Maybe establishing history is something that matters from a purely legal perspective, but I'm having trouble seeing why that really would be important from a moral perspective. If X really is a right, why is it that X deserves protection _only if_ it was historically understood to be a right? Surely it can be the case that some right has been historically violated. How does that make it okay to continue to violate that right?

Arbitrary, in how many

Arbitrary, in how many states? And that only goes about a third of the way to establishing a historical right to abortion on demand.

Roe is important because

Roe is important because it's a case people actually know about.
We've read Raich, but most people couldn't tell you what it was.
Roe is important because a whole bunch of people have focused their political careers on it. Kelo has seized the national imagination, but there's no organized group coordinating the action. IJ's Castle Coalition doesn't come close. Roe is important not just because of the holding, but because it raises big doctrinal concerns about separation of powers, textualism, activism. Lawrence has resolved, finally, some of that doctrinal incoherence, where we had a right of privacy so strong it allowed babykilling, and so weak it didn't allow anything else.
Scott, under the common law, first trimester embryos, before quickening, could be killed, so there is some historical foundation for asserting a 9th amendment right. Roe is important because it polarized the two big parties over this issue, with lots of southern conservatives leaving the democratic party and northern liberals leaving the republican party.
Part of the Reagan/Bush/Bush winning coalition has been activism by the fundies with the goal of getting judges who would overturn Roe.
There are only a few cases that have had that sort of impact and remain controversial today. Please note I haven't taken sides - my position is that Roe is important. My opinion of bush is not high. 3 generations of idiots is enough. But the Roberts nomination seems to have been a very astute move.

Brian, _Let’s let the

Brian,

_Let’s let the democratic process actually work for once._

I think that this sort of sentiment sounds really nice, but it neglects the fact that the U.S. isn't a democracy per se. What we have is a constitutional democracy. That means that there are limits placed on what the democratic majority can actually do. Those limits were intentional. Madison and Jefferson worried, in a series of letters, that the chief danger in the new republic was tyranny of the majority. Madison went out of his way to make it difficult for majorities to trample the rights of minorities.

I find it hard to see why allowing democracy to trump rights would ever be the way to go. Indeed, I'm often pretty suspicious of this whole idea that the people know best. Yes, I know that sounds elitist, but the fact is that often the people, if completely unconstrained, do really awful things to one another. So I've no problems with placing limits on democracy, with saying that certain acts are simply out of bounds however popular they might happen to be.

Not Goldwater himself, but

Not Goldwater himself, but the religious right people were already around him like Phyllis Schlafly, Howard Phillips and Paul Weyrich who were all the originators of the relgious right. They all claim to have been motivated especially by his defeat in 64, and not by the Roe v. Wade decision 8 years later (though certainly that helped.) I would say Bush I's candidacy was an example of the relgious right as well, even though my guess is that Bush I is secular (even though he claims otherwise.) Regardless it's a pretty small point given the context.

Goldwater != the religious

Goldwater != the religious right, nor even remotely connected to it. :roll:

Doss: I think that a

Doss:
I think that a patchwork of abortion laws varying state by state would be a better outcome than the current, hyperlenient abortion standard set in 1973

This would just effectively penalize the poor women of the states which chose to ban abortion.

Then go out and help them,

Then go out and help them, or support groups that will. Set up clinics just across the border, etc etc. Publicize their plight, donate to the groups working for political change, etc.

I.E. actually work for some social change/consensus vs. hiding behind judicial fiat which offends & inflames passions and has left abortion a gaping wound in the body politic, as opposed to Europe where the matter is noncontroversial.

The Roe v. Wade decision *made* the religious right as a political force, and we've been suffering for it since. Let's let the democratic process actually work for once.

It has left a wound, though

It has left a wound, though it didn't create the religious right (I seem to remember a certain Barry Goldwater running in the 1964 election.) Nevertheless, there are quite a few problems with your analysis/reccomendations:
a. I'm not sure which borders I'd be setting clinics up on for states like Mississippi, when it's far more likely that it'd be prevented accorss the entire region

b. There is a mountain of difference between advocating "allow a woman to have the right to thing x" and "please donate money so you can actually contribute to this woman's abortion" and as such we're likely to be rather short of funds when trying to Help a poor woman from Mobile make her way up Arkansas (or the closest place that would allow it.)

c. advocating that the federal government protect the right is working for political change, or at least it's political. Why would you have women's rights groups try and win the fight over again?

d. States which kept abortion legal would suffer the problem of becoming a vertiable tourist destination for abortions. Many/Most people who support abortions don't love the idea of abortions, but rather tolerate such an idea and as such you'd begin to see people voting so that their state doesn't become "Abortion USA" quiet apart from their stance about Women's rights. This creates a positive feedback loop in which the consequences for legalizing abortion of in an intolerant nation bceome greater and greater.

The matter in europe is noncontroversial because theirs are not countries of religious wackjobs. This is a case in which the federal government guarantees a freedom that should not be infringed upon and prevents states from irrationally choosing to infringe on a woman's right to privacy. It's unclear to me why we should encourage the federal government to limit freedom by allowing certain states to infringe on people's rights as they see fit. When things are not simple (and abortion is not a simple issue, of course) we should always err on the presumption of liberty. That means that we shouldn't allow in any governments (be they state, local, or federal) to decide whether a Fetus is actually a person or not, and instead presume that the individual is free to make her personal choice regarding the morailty of the issue.

Matt

Matt

I certainly hope my comment

I certainly hope my comment is being held for moderation and not just lost and gone forever... Time will tell.

not that I want to offend,

not that I want to offend, but that is about the most ignorant thing I’ve ever heard anyone say.
well none, taken, primarily because I doubt it's true. I said I liked federalism as a concept, which is something you'd likely agree with- I only said that I didn't think it's current apllication was practical. That makes me about half-right in your eyes, correct? Surely you've heard someone say something completely wrong before.

Your telling me, you’d rather be forced to follow a “law” that you and a group of other individuals find blatantly wrong and immoral just because another group of individuals beleives it is right and moral?

No I don't particularly like that idea, but there's really not a way around it. Try as we might, we can't get around the idea that we have to value things as a society, and to at least a mild degree, all people's preferences can't be satisfied. All Libertarian theories feature brutal aspects of paternalism (contract law, private property rights, etc.) The question is which set you like better.

That is what most people would call Socialism, and while its fine and dandy for those that agree with that system of governance, we do not live in a Socialist state (though sometimes it sure does feel like it…).

Well I'm inclined to diagree in a sense, if only because our state capitalist structure which produces public risk and private profit, simply manages to take the worst aspects of socialism and the worst aspects of capitalism and then combine them. Who knows what you mean by socialism here, though, I just thought I'd point out that I consider the US to be somewhat socialist, in the very worst sense, only the beneficiaries aren't the poorest but the richest of the population.

I in fact, can’t think of any social or political issue in which I think Federalism wouldn’t work.

Let's try environmental legislation.

Comment by matt27 — August

Comment by matt27 — August 19, 2005 @ 10:47 am
Additionally, I’d like to mention that I think Federalism is usually a lazy argument. It’s a good concept, but it usually just functions as a substitute for thinking about an issue, because as much as I like the concept of federalism (as an end result, I think societies should function much like that- The Ottoman Empire approach) I think it’s almost never the right solution for issues at the moment. I can’t think of a single issue on which I think it’s right answer, actually.

not that I want to offend, but that is about the most ignorant thing I've ever heard anyone say.

Your telling me, you'd rather be forced to follow a "law" that you and a group of other individuals find blatantly wrong and immoral just because another group of individuals beleives it is right and moral?

That is what most people would call Socialism, and while its fine and dandy for those that agree with that system of governance, we do not live in a Socialist state (though sometimes it sure does feel like it...).

I in fact, can't think of any social or political issue in which I think Federalism wouldn't work.

I really don't know

I really don't know either--I seldom ventured off of campus.

Winston-Salem (or at least

Winston-Salem (or at least the WFU campus) seems really nice. I was there for a conference a few years ago. I've no idea what it would be like actually living there, though.

Ah, I was curious. I spent

Ah, I was curious. I spent undergrad in Winston-Salem.

Joe, where is "here?"

Joe, where is "here?"

Scott, Here is Pembroke, NC.

Scott,

Here is Pembroke, NC. It's in southeast NC, about 80 mi. from Wilmington and 40 mi. from Fayetteville. The nice mountains are way to the west, the ocean is off to the east, the decent cities are too far to drive for an evening, and there's lots of reclaimed swamp and unemployed former-textile workers. On the plus side, cigarettes are cheap, people pay me to talk about philosophy, and Fayetteville has lots of strip clubs.