Thursday, January 12, 2006

Settled Law?

The Alito confirmation hearings will give many ordinary Americans the opportunity to learn about our legal system. Unfortunately most of what they’ll learn will be coming from the liberal mainstream media. The question that seems to be dogging Sam Alito is whether he believes that Roe v. Wade is “settled law” and therefore untouchable. But let’s look at what liberals and Democrats are asking for in terms of making the Roe v. Wade untouchable. They want to forever lock into the constitution a “right” to abortion that never existed before 73 and that was put in place by a 5-4 Supreme Court decision. Forgetting the fact that that was the scantest of margins in one of the most liberal courts in the history of the country, the judiciary is the least democratic of branches of government.

Schumer and Kennedy would have us believe that those 5 Justices were infallible and therefore we must forever live under their edicts. But I think most Americans believe the United States is an enlightened country that always tries to correct its mistakes. Things that were once considered normal or legal no longer are. What if some other Supreme Court decisions were deemed “settled law” and therefore untouchable? Today we would still have slavery and myriad of other practices that we now deem unacceptable. In Plessy v. Feguson (1896) the Supreme Court, by a margin of 8 to 1, upheld the “right” to have segregated facilities for blacks and whites under the doctrine of “separate but equal”. Thankfully a later court felt that this was not settled law and ruled against segregation in Brown v. the School Board of Topeka Kansas (1954).

The fact is that it’s the court’s job to hear individual cases and interpret, not amend, the constitution. My advice to liberals and Democrats that want to preserve abortion “rights” is to try to pass a constitutional amendment. Then they won’t have to rely on a tenuous precedent. They haven’t attempted this because they know that the majority of Americans have at least some ethical concerns about abortion, and with good reason. Since 1973 science has advanced dramatically. Today we know much more about the biology of a fetus. When brain waves begin, when the heart starts beating. The number of weeks that it takes before a fetus is viable outside the mother’s womb has also been drastically reduced. Thrusting Roe v. Wade into the ream of settled law would be to ignore these advances and the corresponding changing opinions of ordinary Americans towards the practice of abortion.

Democrats love to change the rules of the game when they aren’t sitting in the catbird seat. When a Democrat president names a Supreme Court Justice, there aren’t supposed to be litmus tests but when a Republican makes a nomination then of course they need to know whether the nominee is on the “correct” side of an issue. Recently I was walking into the grocery store and was stopped by a woman who asked me to sign a petition to change the Florida constitution to include a provision for the drawing of “fairer” congressional districts. I simply told her “no”. She asked me why I wasn’t interested in “fairer” congressional districts and I explained that nobody was concerned with the way congressional districts were drawn in Florida when Democrats controlled the state legislature for decades. Now that they are out of power, they want to change the rules of the game. Thinking about it now, I should have told her “because it’s settled law.”


alex said...

Seems to me you are the one who wants liberals to "forever lock" into the Constitution the right to abortion. You just said it's your advice to them. The liberal point of view is the right to abortion is already there, as part of the right to privacy over your body. Roe v. Wade just interpreted it that way. I've never seen any mainstream liberal leader or group argue for an amendment in the Constitution, a step which is a) not meant for narrow-agenda issues and b) procedurally almost impossible to ammend.

Many decisions of the Court are split 5-4. Gore v. Bush comes to mind - is it your argument that they lack legitimacy?

Democrats, Republicans, all try to get justices that go their way. That's the game. As if Clinton would have been able to nominate Tribe without opposition. You guys just blundered w/ Blackmun, O'Connor and Souter. Or maybe is it that an intelligent justice will see the light no matter what.

I actually wish that Scalia, Roberts, Alito et al; reverse Roe. All that's going to happen is that the retrograde red states are going to make abortion illegal and the enlightened blue states will keep it legal as it should be. In battleground states like Florida, referendums will be forced, and this will be the issue that gets the vast majority of apathetic voters (the young and the black) riled up again and decide they don't want middle-aged rich white men telling them what can they do with their bodies.

Careful what you wish for.

Henry "Conductor" Gomez said...

Clearly I don't want abortion rights in the constitution. But if you want something in the constitution the best way to get that done is to actually put it in the constitution. Liberals haven't attempted this because they know they could never win. A majority of Americans have at least some ethical concerns with the practice of abortion. And I think a 5-4 decision is valid. But that doesn't mean a future court should be banned from re-examining it when a similar case comes along. Every case has its own set of facts. As I mentioned in my piece, Plessy v. Ferguson was an 8-1 decision but several decades later that decision was deemed incorrect by the court in Brown.

And when you say the "All that's going to happen is that the retrograde red states are going to make abortion illegal and the enlightened blue states will keep it legal as it should be." well then you and I are in agreement. The argument against Roe has been that this should be a matter of state law. And you are correct, this should be a matter of politics not a matter of jurisprudence. If abortion turns out to be a losing issues for consevratives in Florida, so be it but the decsision will be a democratic one. I suspect you are wrong, however. I wanted to avoid the debate on abortion itself and just discuss the idea of settled law. But in 30+ years of abortion on demand the general feeling in the country has changed. We've all heard stories about women who have experienced the negative psychological consequences of abortions, we've learned about the gory techniques used to conduct an abortion. One of the reasons Democrats have lost ground (even with an ineffectual Republican president in office and the liberal media to aid them) is that they have become almost exclusively the party of baby killing.

alejandro said...

Yes, we agree. Roe is far from "settled law". I tought that was a poor choice of words by Roberts, probably to avoid being grilled on the subject. The constitutional argument is tenuous. I personally like the idea of a right to privacy and to decide over one's own body, be it abortion, refusal to receive treatment, physician assited suicide, etc, but it's hard to argue it is expressed on the Constitution.

I think it's the opposite actually - in 1973 a state-by-state battle to change existing antiabortion laws would have been a losing cause and it was easier to go the judiciary route (same as with segregation btw). Nowadays there are at least two generations that grew up with the right to choose. I'm optimistic that the days of gory back-alley abortions and unwanted children that end up being wards of the state won't be back.

alex said...

Oh, and you are right, the Democrats have become way too focused on that narrow issue. Let it go, and concentrate on formulating a policy most Americans can get behind.