Centerfield

I listen to bits of the Alito hearings and I keep wondering: will nobody have the guts to stand up and say
- I believe abortion should be legal
- I believe that Roe v. Wade is nonsense as constitutional law
- And by the way, Roe v. Wade did a major disservice to the cause of making abortion both legal and non-controversial. Not to mention what it did in bringing a lot of fanatics and fanaticism to the rest of the political arena.

But perhaps there are few of us left who remember that, pre Roe v. Wade, abortion was in the process of being legalized, via legislation, across the country. And without anything like the level of hysteria that the subject currently arouses. Those being the same people (on both sides of the issue) who therefore assume that, if Roe was reversed, abortion would instantly become illegal nationwide. Which is not only worng, but simplistic.

Which raises the interesting question: if Roe were to be reversed, what would be the status of abortion in any particular venue? If it was previously legal, and nothing further has been done, presumably it still would be. But if it was previously illegal, and laws have since been passed to restrict it (in attempted opposition to Roe), would it now be legal there becasue those restrive laws assume it is legal? What fun!

Posted by: wj at January 10, 2006 01:04 PM

If Roe were overturned, states would immediately set their own laws. Abortion would therefore be legal in some states (MA) and illegal in others (TX). That may sound somewhat reasonable, but as a pro-choicer myself, I object on the grounds that pregnant women in pro-life states are stuck without a choice. In this country, we should have equal rights and equal protection under the law.

Posted by: Staunch Moderate at January 10, 2006 01:58 PM

wj, if you mean that it did a disservice to making abortion uncontroversially legal, then OK. But It certainly didn't do a disservice to the cause of making it legal.

If I'd had to choose, I'd have preferred controversially legal across the nation to uncontroversial but legal only in some places.

Posted by: bk at January 10, 2006 02:15 PM

bk, you obviously don't understand that the way to right every wrong is through legislation. So naive.

Posted by: WHQ at January 10, 2006 02:18 PM

I did, indeed, mean uncontroversially legal. Sorry.

But Roe also brought a lot of far-right fanatics into politics who might have stayed away otherwise. As a conservative (and Republican) myself, I feel free to say that both the country and my party would have been far better off without them.

As for the Staunch Moderate's point: sometimes things will be legal in some places and illegal in others. Happily, if the particular activity is important to you, you are free to move (or get the law changed). And, in the case of Texas and a lot of other "red states," I think what you would actually find is that abortion would be legal in virtually all of them. More restricted than in some other states, but legal. And slowly becoming more available and legal in more circumstances.

Granted, Roe made legal abortion happen faster. But, in addition to being rotten Constitutional law, it has left us today with more fanaticism (on both sides), less civility in politics, and assorted other negative consequences. Sometimes legislation, slow and messy as it is, is preferable to a quick judicial fix.

Posted by: wj at January 10, 2006 03:07 PM

After thirty years in which Roe has corrupted every aspect of public life - Presidential elections, Senatorial elections and Supreme Court nominations - it becomes more and more clear every year that it should be overruled once and for all. And I believe that a GOP nominee should clearly and directly say that Roe was wrongly decided and should commit themselves to overrule it. As previously noted:

It seems to me that a Republican nominee to the Supreme Court shouldn’t be going before the Senate Judiciary Committee and relying on slight of hand to bamboozle their way through questions on Roe. This implicitly seems to (mistakenly, in my view) concede the point that we are merely trying to obtain a policy-based result, rather than trying to correct a ghastly legal mistake which has corrupted Supreme Court nominations (and, by extension, Presidential elections) ever since. Instead, they should be going in there and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe. Stare decisis offers no defense against a wrong decision.

See also comments here.

Posted by: Simon at January 10, 2006 03:29 PM

it has left us today with more fanaticism (on both sides), less civility in politics, and assorted other negative consequences. Sometimes legislation, slow and messy as it is, is preferable to a quick judicial fix.

I admit that's a plausible hypothesis. It's certainly resulted in acrimonious divisiveness. But more? That's pretty hard to quantify. My experience with perseverating ideologues is that, due to their obsessive and inflexible nature, something must be the canvas. So my gut tells me that if somehow abortion were removed as the canvas for painting a glorious battle against the morally suspect, some other canvas would be quickly found.

In other words, abortion is the lightning rod, but it's to some extent a lightning rod of convenience, only in the sense that removing the lightning rod would not remove the clouds full of charged energy seeking release. The feeling which must be grounded by some lightning rod? A feeling of dissatisfaction with uncertain purposeless drifting among the more authoritarian personality types, who crave certainty, glory, righteousness and a sense of purpose.

This is not to say that all energy of that type must flow to one particular source, only that there surely seems to be a human craving for purpose, rightness, and glorious battle, and this energy constantly seeks ground.

Posted by: bk at January 10, 2006 03:29 PM

Incidentally, I would add that I think it overstates the case to suggest that, after Roe and Casey are overruled, it will simply be "legal" in most states. To be sure, different states will have different rules, and some states will ban it outright, other than to save the mother's life (as they properly should, IMHO), but I think it is extremely unlikely that any more than a very small number of states will permit abortion on demand in the manner it has been available post-Roe. Most Americans do not want abortion on demand, even if they do not want abortion to be illegal, and I think normalizing the abortion issue by returning it to its proper forum - the states - will require both the pro-life and pro-choice lobbies to swallow hard and confront the fact that most Americans belong to neither camp.

Posted by: Simon at January 10, 2006 03:33 PM

Little known fact: President Bush has never said he wants Roe v. Wade overturned.

Posted by: Oberon at January 10, 2006 04:15 PM

Oberon,
I think that's more broadly known that you might think, which is one reason why practically nobody was willing to trust him when he nominated Harriet Miers.

Posted by: Simon at January 10, 2006 04:18 PM

Aside from bk's (I think apt) lightning rod analogy, there is also the consideration of upholding Roe vs. not upholding Roe (as a specific hypothetical action in 1973). Whether or not the angst now devoted to the opposition (and opposition to the opposition - aka support) to Roe would have found some other focus in an (approved) Roe's absence, one must consider what angst would be devoted specifically to its being struck down. You can't simply assume that upholding Roe caused more controversy than not upholding it would have. Not upholding Roe may have been worse from the standpoint of political division. If you're against Roe because you think abortion is wrong or because you think it was poor jurisprudence, stick with that. Don't oppose it because it caused problems politically, problems that may have been worse otherwise, anyway.

Posted by: WHQ at January 10, 2006 04:25 PM

Maybe "most" Americans don't want abortion on demand, but if not most, then a solid majority also doesn't want Roe overturned. And they are not prone to carefully parsing and deeply thinking about Roe beyond the idea that for 30 years it has made abortion permissable to all American women in each and every state. My sense is that many or even most Americans view this as an issue of privacy, and believe that there certainly are things which Americans deserve to keep private, as decisions between only those directly affected. In other words, most of us don't care whether the constitution grants a right to privacy. Since we think we deserve this right (even though we'd differ about what that means if asked), we're glad one was found or declared. And we'll be pissed if 5 scotus justices say it doesn't exist.

So I don't think it's going to get overturned. And I think that 5 or 10 years from now Simon will be wondering, "if not Alito, then who?" My sense of Alito is that while he would have ruled differently in the case of Roe, he'll respect the now somewhat-aged precedent while endeavoring to be the sort of judge who won't make such decisions in the future.

If the possibility of Roe actually getting overturned approaches in an actual applicable scotus case, I expect we'll see lots of libertarian republicans jumping the ship they perceive as captained by unbearably social conservatives. So contra the notion that striking down Roe will bring about peaceful legality, I'd likje to float the suggestion that it might instead result in all political hell braking loose. Every state that makes abortion substantially illegal can expect to host legions of angry female protestors demanding an explantion for why their pregnancy is the state's business. Deja vu all over again, coupled with the Jacksonian resurrection of a heretofore silent majority, leading insurrection against an invasive Republican-wrought nanny state.

Posted by: bk at January 10, 2006 04:26 PM

Roe has corrupted every aspect of public life - Presidential elections, Senatorial elections and Supreme Court nominations.

Point taken. Abortion even manages to find itself into every state race and even city council races--go figure! But, I don't think it was specifically Roe that caused that--it would have happened regardless. Let's face it, there are many who believe abortion is murder, just as there are a large number that believe it is a woman's right to choose. Legalizing abortion through legislation would not have made those beliefs any less real or kept the religious conservatives out of the political process. Look at the gay marriage debate today. For the most part, the courts have upheld marriage as a man and a woman. A handful of states have legalized civil unions via legislation and the religious right is fighting that tooth and nail. They will fight the issue--how it is brought into law is irrelevant.

Posted by: AR at January 10, 2006 04:35 PM

Abel, I don't agree with that. HOW results are reached is very important to people's willingness to accept them. It's like a trial... if you go into court and lose, you're not going to be happy. But if you go into court, the judge tells you to shut up because he already decided how he's going to rule and he doesn't want to hear from you, then you're going to be not just unhappy but irate.

People in our society are remarkably willing to put up with outcomes and choices they don't like, as long as they feel those results were reached in a fair manner. When they don't feel they have had a chance to express their view and have that few heard by the decision makers, then they feel that not only did they lose on the issue, but they were rendered completely powerless.

Sure, there will always be a hard core who are not going to change their mind and will continue to fight no matter what. But the ones who feel slightly less strongly about the issue will tire of the fight once they've had their voice and a decision has been made in a process they perceive as fair. But if the process is not fair and does not give them a voice, then watch out...

If I lose a fair fight, well, that's just one issue gone, and I can fight again. But if you tell me I can't fight again on that issue or any others, and I've lost not just one battle but the entire war. I'll fight against that much larger loss much harder than I would fight against one tiny little isolated policy loss.

Posted by: PatHMV at January 10, 2006 05:03 PM

AR, you are correct that some will fight any and every issue tooth and nail. But the critical (IMO) difference is that if they have to fight in the legislature, and absent a judicial decision, they are vastly more likely to lose. Some (I have no idea exactly how much) of the opposition to Roe comes from people feeling like they had something shoved down their throats. If it had been voted in by the legislature, they might or might not like it much, but they would be much more likely to accept it.

Which is why, even from the unfortunate level of hysteria over gay marriage currently in evidence, it is likely to be established and no longer a subject of major controversy long before abortion is. Simply because the bans will get chipped away at, just like the anti-miscegenation laws were. Some places will keep the bans in place longer than others. But they will become a small and shrinking number -- and my guess would be that it will happen before 2020.

Posted by: wj at January 10, 2006 05:05 PM

Regarding the state of law if Roe is overturned, I'm sure both the pro-abortion and anti-abortion groups' website have lists of which laws are on the books, and will automatically be "law" again.

But we should also expect Congress to debate a national ban if Roe is overturned. I'm guessing (not sure at all) that a majority in the House is anti-abortion, but the Senate would filibuster.

Posted by: Oberon at January 10, 2006 05:13 PM

Maybe "most" Americans don't want abortion on demand, but if not most, then a solid majority also doesn't want Roe overturned.

Is there a solid enough majority to amend the Constituion? Because nothing short of that is sufficient to legitimize Roe. There is obviously a false conflation here, the erroneous equation of overturning Roe with making abortion illegal, but you might want to wonder, if such a thumping majority supports abortion rights, why does one need Roe?

See generally Trying to have it both ways on abortion, 10/12/2005.

Posted by: Simon at January 10, 2006 05:15 PM

But we should also expect Congress to debate a national ban if Roe is overturned.

Congress has no power to enact such a law, and if it was passed, it should be challenged in the courts, and struck down. Were I a Justice, I would vote to strike down a national ban on abortion as swiftly as I would vote to overrule Roe and uphold the sort of state regulations I noted above. Posted by: Simon at January 10, 2006 05:18 PM

Oh, you and your respect for that pesky constitution-thingy, Simon! Don't you know that we the people are too knee-jerk reactionary to be entrusted with important decisions? Times change, and these brilliant, fair, unbiased, all-seeing judges can see which way they're changing oh so much better than poor little ol' us.

Isn't that right, Brian?

Posted by: PatHMV at January 10, 2006 05:23 PM

So I don't think it's going to get overturned. And I think that 5 or 10 years from now Simon will be wondering, "if not Alito, then who?" My sense of Alito is that while he would have ruled differently in the case of Roe, he'll respect the now somewhat-aged precedent while endeavoring to be the sort of judge who won't make such decisions in the future.

I disagree - I think Alito will vote to overrule Roe, and I think he should say so. However, I do think Chief Justice Roberts will do so, and I opposed his nomination fromthe moment it became clear that he lacked what I would regard as the appropriate and necessary philosophical commitments which I would require of a Justice of the Supreme Court.

Incidentally, I don't think that overruling Roe will bring about a period of "peaceful legality" - I think it will return the issue to the states, and in my view, the vast majority of states will almost instantly enact laws that are, at their least restrictive, similar to that at issue in Ayotte - that restrict abortion to only the most dire emergencies. However, even if you presented me with information that overturning Roe would destroy the Republican party, and that every state would legalize abortion on demand, I would still vote to overrule Roe. Fiat justitia ruat coelum.

Posted by: Simon at January 10, 2006 05:24 PM

Would overruling Roe _now_ produce instant peace on the topic? Of course not. What I would expect to happen is a surge in state legislatures outlawing all abortion (given their current membership). Followed by a massive turnover in the state legislatures, as conservative, not to mention moderate and liberal, women (and men) who didn't worry too much about their legislator's views on Roe start voting on that basis. Followed by abortion being, as I noted above, mostly legal in most of the nation.

Because of the mess we have gotten into on the subject, it would be very messy. But the end-point is not much in doubt -- just how long it would take to get there.

Posted by: wj at January 10, 2006 05:39 PM

WJ-
I think you're completely wrong, but I think we agree on what should be done - even if not what the result will be. Whatever will be post-Roe, whether you're right or I am, will at least have the virtue of Constitutional legitimacy.

Posted by: Simon at January 10, 2006 05:50 PM

"Steam room". Very punny, Tully. :-)

Wow. 21 comments and nobody's been called a "baby killer" or a "woman hater" yet. I'm surprised. Impressed and pleased, but none the less, surprised.

Oh, you and your respect for that pesky constitution-thingy, Simon! Don't you know that we the people are too knee-jerk reactionary to be entrusted with important decisions? Times change, and these brilliant, fair, unbiased, all-seeing judges can see which way they're changing oh so much better than poor little ol' us.

That's right, Pat. Why rely on pesky judges to decide Constitutional matters when we have a prize like W to do these things for us? Of course, we wouldn't have God's Gift of George if it hadn't been for five pesky activist judges, but that's a topic for another rant. ;-)

Brian is right. Even if Roe is overturned, it will only create a far bigger mess than any that has gone before; some bells can't be unrung. And why should the GOP allow Roe to go? The Reps are sitting in the catbird seat on this issue.
They can claim the moral high ground via the Red Staters without alarming the Blue Staters into coming out and voting against them.

Now, if you'll excuse me, I gotta get back to Pat's email.

Posted by: Blue Jean at January 10, 2006 05:53 PM

WJ makes another excellent point. By removing the issue from the legislatures, it allowed those legislators to rant and rave and demagogue without any consequences attached to their behavior. Conservatives on taxes and guns and fiscal matters, but who support at least some abortion rights (there's a whole lot of women in this category), could safely vote for vociferous pro-lifers because there's nothing they could do to affect abortion issues.

Similarly, generally conservative politicians who in their heart do not want to intrude in this issue legislatively can still safely pander to the hard core by loudly proclaiming their opposition to abortion in all circumstances at any time. He knows he can't change abortion one way or the other, so he can safely demagogue without worrying he will be called down for not matching his deeds to his words. Restoring the issue to its proper place, the state legislatures, will indeed have a significant impact on our political landscape... and it may well turn it a bit more moderate in the end.

Posted by: PatHMV at January 10, 2006 05:56 PM

The Reps are sitting in the catbird seat on this issue. They can claim the moral high ground via the Red Staters without alarming the Blue Staters into coming out and voting against them.

When even Blue Jean and I both make the same point about such a fundamental left/right issue as this, you know it's got to be right! Posted by: PatHMV at January 10, 2006 06:01 PM

Leaving the world of politics behind, this year's Detroit Auto Show had some great new cars, including this awesome concept from Dodge. If they actually put this in production, and let's face it, they have to--I'm all over it.

Posted by: AR at January 10, 2006 06:11 PM

Overturning Roe v. Wade would probably be the worst thing that could ever happen to the religious right. I think Roe has given the far right much more energy than it would have otherwise and, as Pat and Blue Jean point out, they allow legislators to posture without any consequences. Without Roe v. Wade to kick around, the right would lose a lot of its raison d'etre. To some extent, pro-choicers have been on the defensive--they have raised the dire scenarios of what would happen if it was overturned--which I think are probably exaggerated--but since these were all hypothetical, it just was difficult to mobilize voters except for those abortion activists--who tend to be out of the mainstream anyway.

If Roe was overturned,I suspect that many, many centrists--while they may have qualms about abortion as a moral issue or oppose abortion "on demand"--would be very uneasy about a total ban. I think this would the time when the right "jumped the shark" so to speak and it would force libertarian Republicans to jump ship. I suspect that, over time, you would see a lot of states enact a more moderate abortion law that preserves the right in general but with restrictions--which is where I see the country being.

Of course, I'm not naive enough to think that legislation simply reflects the will of the majority. Or that all states would be alike. So, there would certainly be states where you saw absolute bans. That bothers me, but as someone above said, there are always things that are legal in one state and not in another. That's called democracy and while I understand the concern that women have about the unfairness of being able to get an abortion in one state but not another, you could say that about many things.

Currently, abortion is on shaky footing anyway; as long as conservatives keep winning elections, eventually, Roe is going to get overturned, if not now, then later. It's a lot like civil rights. While I don't want to denigrate the moral value of Brown v. Board of Education, the civil rights legislation of the 1960s had a lot more practical effect on civil rights than did the court decision.

Posted by: Marc at January 10, 2006 09:28 PM

Overturning Roe v. Wade would probably be the worst thing that could ever happen to the religious right. I think Roe has given the far right much more energy than it would have otherwise . . . Without Roe v. Wade to kick around, the right would lose a lot of its raison d'etre.

Well, as I suggested to Brian above, what's not to like about overturning it, then, Marc? I mean, surely liberals should positively get on board with (or at least, get out of the way of) the business of overturning Roe. Not only will overturning it destroy the Republican party (heck, if that happened, the Dems might even win an election! Dare to dream!) - but it will do so at no substantive cost to the liberal agenda, since the overwhelming pro-choice majority in America will ensure that abortion remains legal once returned to the states.

Right?

Posted by: Simon at January 10, 2006 10:10 PM

Is there a solid enough majority to amend the Constituion? Because nothing short of that is sufficient to legitimize Roe.

Yes, Simon, in your opinion. In your mind. But you're either missing my blindingly obvious point, or seeking to blunt its obvious force. The fact remains that a solid majority does NOT want to see Roe overturned. (yes, Simon, less than 2/3s, but still a solid majority today, as we speak). Which means that they favor Roe, and that they care much less about the sanctity of the mechanism you cherish and continually seek to exalt.

In the general public's view, several decades of something being the law of the land tends to legitimize it. Now I know you don't like that and don't think that's right, but it's how people tend to think. Again, it's that argument about hey versus hello. You think hey is different, and not good enough, but for most people, hey is as good as hello.

Well, as I suggested to Brian above, what's not to like about overturning it, then, Marc?

I can only think of one tiny (and apparently to you untroubling) thing not to like. That's the forcing of some pregnant women in some states to bear their pregnancies to term even if these women don't feel that's the right thing to do, thereby forcing them to bring a son or daughter into the world, and then either raise that child in circumstances that they know are not suited for a child, or else forcing them to give their child away to someone else.

But hey, who cares? Just so long as the letter of the constitution is followed. Then we can all sleep soundly at night, safe in the knowledge that all those stupid women (who after all made their bad choice when they had sex and don't get to re-think it once a several-celled organism has begun to grow in their body) are back under the thumb of the state.

And yes, maybe that last part isn't fair, Simon, but you asked what's not to like, and I told you.

Posted by: bk at January 11, 2006 09:16 AM

Brian, all those arguments could have also been used to support upholding Plessy v. Ferguson, instead of tossing it out as Brown v. Board of Education did.

The PROCESS is far more important than particular individual policy decisions, especially on issues as divisive as abortion. With a fair and level playing field, where everybody knows the rules, then we can have a fair fight and a good open debate. When power is usurped by one branch of government, and that's what Roe was, then the rules of the game have changed, the rule of law has been ignored, and we are left with chaos extending far beyond the reach of one particular policy decision.

Posted by: PatHMV at January 11, 2006 09:29 AM

Brian,

I could just as easily say that there is a constitutional right to health care or housing that should be established by the courts. Why is it fair that some people (with money) can get health care and others can't? Some states have more generous welfare benefits than others. I'm not making light of the problem you raise, but you could use that argument to eliminate democracy entirely. Unfairness is part of life and part of politics.

Simon,

I'm not necessarily in favor of overturning Roe v. Wade, in part because I don't have enough confidence in my analysis to test it. Even though I think it would ultimately hurt the right wing, it would create a lot of hysteria in the short run. (And I hate tumult.) But legally, it's a poor decision, however much I agree with it as policy and I think it's a mistake to rely on a decision with so many holes in it. And liberals need to start trusting democracy--when I said this to a liberal friend, she said that, well, courts have to protect us from ourselves. While there may be some truth to that, I find it disturbing that liberals have so little faith in democracy--or think that their policies are too important to risk losing in the democratic process.

Posted by: Marc at January 11, 2006 09:40 AM

My latest pet peeve is John McCain being referred to as a moderate. He is a conservative who has positioned himself as a maverick within the Republican Party. Anybody who votes for McCain thinking he is going to govern as a moderate is going to be disappointed.

Posted by: Alf at January 11, 2006 09:54 AM

According to the analysis contained in this Opinion Journal article, Republicans should maintain the appearance of fighting to have Roe overturned without actually succeeding.

Posted by: WHQ at January 11, 2006 10:02 AM

I can only think of one tiny (and apparently to you untroubling) thing not to like. That's the forcing of some pregnant women in some states to bear their pregnancies to term even if these women don't feel that's the right thing to do, thereby forcing them to bring a son or daughter into the world, and then either raise that child in circumstances that they know are not suited for a child, or else forcing them to give their child away to someone else.

I would be more troubled by throwing women in jail for getting or attempting to get abortions and throwing doctors in jail for performing or attempting to perform them.

How bothered will the people who were upset about the fed tapping phone lines be when the states start policing people's uteruses (uteri?).

Posted by: WHQ at January 11, 2006 10:10 AM

That should read "feds", not "fed." I don't think Greenspan ever authorized such surveillance.

Posted by: WHQ at January 11, 2006 10:12 AM

Alf, I'd throw in one thing about McCain. He's definitely a conservative in philosophy, but being an old-school pol who understands the art and necessity of compromise in a pluralistic democracy puts him squarely in the moderate camp today.

Posted by: Tully at January 11, 2006 10:23 AM

Wow. 21 comments and nobody's been called a "baby killer" or a "woman hater" yet. I'm surprised. Impressed and pleased, but none the less, surprised.

And all I asked was that the language stay "printable." (Thanks, folks!)

Posted by: Tully at January 11, 2006 11:10 AM

The PROCESS is far more important than particular individual policy decisions

Is the process really more important than the product? I know for a fact that there's widespread disagreement on that point. Processes, especially bureaucratic ones, are very often designed with good intent specifically to prevent undesirable outcomes in the products, regardless of how likely such undesirable outcomes may be, and regardless of how likely given eventualities actually occur once you get to try out the system. But they don't always get followed because they are cumbersome and time proves them to be not strictly necessary, that you can get by without them most of the time, and that's usually good enough. And yes, I know the counterarguments, which make a good point about decreasing risk by doing things properly all the time. Please notice therefore that my point is about how the real world tends to work.

all those arguments could have also been used to support upholding Plessy v. Ferguson, instead of tossing it out as Brown v. Board of Education did.

Sure. Maybe. But they weren't. Or to the extent used, they failed to carry the day. I'm still waiting for you to show why, constitutionally speaking, it's obvious that "separate is inherently unequal." Not only is this not obvious from the constitution, it's not even obvious outside the constitution. Some have argued for example that separate schooling for say ,women or special academies just for blacks, are an appropriate remedy needed to make things MORE equal. We know that it's much more reasonable to acknowledge that separation just happened to be unequal in this case because of how the separation manifested itself.

It just so happens in the case of Brown that the particular extra-constitutional creativity used garnered more widespread and enduring support than Roe. But the notion that separate is inherently unequal resides every bit in the alleged and in fact imaginary creative "penumbra" that Roe does. It's not there. It came into being as a courageous creative stroke by a group that saw fit to act decisively.

Morally, I believe segregation to have been wrong, but the constitution was mum on the point. I am nevertheless glad that SCOTUS didn't take an Alito-like position of ruling that as a matter of law the people needed to speak directly on the matter by passing a precise on-point amendment.

Of course, we'd have done so if we had to.

Posted by: bk at January 11, 2006 11:18 AM

Separate is inherintly unequal as soon as the separation is enforced. You tell one group of people that they are allowed in and another group of people that they are not. That the reverse is true elsewhere does not then balance the equation, because it is not an equation. The reverse elsewhere simply represents another inequality.

Posted by: WHQ at January 11, 2006 11:32 AM

Tully,

Don’t believe the hype. These days opposing Bush on anything gets you labeled a moderate. Johnny Mac is a conservative and I have seen nothing in his record that would lead me to believe that he would govern as a moderate.

Posted by: Alf at January 11, 2006 11:58 AM

Separate rail cars, schools, water fountains, restrooms were NEVER "equal" in any way, shape, or form. They differed in quality, in convenience, in cleanliness, in maintenance, and last but not least in societal prestige. The front of the line is better, as is the front of the bus. The Constitution was NOT "mum on the point". The 13th, 14th, and 15th Amendments were all clearly worded and aimed at abolishing legal distinctions among the races. As Justice Harlan noted in his dissent: "Our constitition is color-blind, and neither knows nor tolerates classes among citizens."

In the court's opinion, Justice Brown said:

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

That's just a flat lie. The separateness was erected so that white people could keep black people "in their place". That was apparent in both the text and the motivations of the Jim Crow laws, as Justice Harlan noted in his dissent:

What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana."

As for the importance of process, do you know how many governmental forms the French have been through in the last 200 years? They're on at least their 5th "Republic"... compared to our 1 (plus, the French had an empire and one or two other non-Republic governments along the way). Why? In part because they tried to embed in their various constitutions a whole bunch of specific rules and policy decisions rather than create a wise, flexible process which would allow elected representatives to work out those policy decisions through tough and maybe unpleasant compromises. They also failed to create a process which adequately balanced the competing demands of society. The United States, on the other hand, focused far more on the process by which decisions are reached rather than the substance of those decisions. And the framers managed to balance quite well the competing demands of urban and rural folks, of those wanting a strong presidency and those wanting a dominant legislature, and all the other competing impetuses which face us. And we've lasted for well over 200 years thanks to the framers' foresight in desiging the PROCESS.

Posted by: PatHMV at January 11, 2006 12:05 PM

So, WHQ, do you then believe that all single-sex schools and academies that accept any federal funds of any type are unconstitutional?

What about gym classes? What about boys playing field hockey and softball?

And here's a real tough one...What about separate boys and girls tennis teams? If the teams consist of the 7 best players, and the 14 best players are all boys, is it more equal to fill both teams based on merit, or is it more equal to have separate boys and girls teams?

Suddenly not as simple as it seemed at first, huh? I'd say that separate tennis teams for boys and girls is inherently MORE equal.

So you guys are all BUSTED!

Posted by: bk at January 11, 2006 12:43 PM

While I tend to agree with originalism in principle, and in practice to the degree that it is feasible or relevent, I'm not sure that it is part of the formal "process" that we're discussing. I don't know if originalists would claim that decisions such as Roe or Brown violated the rule of law. Maybe some would. But to me originalism is a preferred approach to jurisprudence rather than a strict matter of process. My point is that when we discuss process as a matter of our system of government and the rules thereof as a whole, in a sense, from the outside, it may not be the same thing as discussing process as a matter of how judges make decisions through a line of reasoning, or even how policy comes about within the system by one or another available means the system allows for. In short, I think you guys may be arguing about the importance of process on different levels, and it's possible to agree with any of you simultaneously on different levels.

Posted by: WHQ at January 11, 2006 12:57 PM

Having separate tennis teams provides and opportunity for the girls that they would not otherwise have were they to compete with the boys. The same can't be said about racial segregation.

Posted by: WHQ at January 11, 2006 12:59 PM

First of all, Brian, merely receiving federal funding does not turn an entity into a government actor. The fact that the government buys a lot of software from Microsoft (and thus MS gets a lot of funding from the gov't) does not make Microsoft a government agency.

Second, Congress is given the power to enforce the 14th Amendment with "appropriate legislation". Thus, where Congress chooses to step in, its actions should be given a great deal of deference unless clearly contravening a specific provision of the amendment. This deference is NOT due the states, which were not given such enforcement power. Congress has addressed gender disparities in sporting teams with Title IX of the Civil Rights Act.

One can also look at practices and mores immediately surrounding the enactment of the Amendment to see that it was aimed at redressing racial disparities rather than gender ones (hence the perceived need for the women's suffrage amendment). There is no evidence that the drafters of the 14th Amendment intended to undo prominent aspects of our culture regarding gender differences, while there is ample evidence that they intended to erase racial classifications.

Finally, I assume by your use of "BUSTED!" which is rather unlike you, that you realize you are losing this argument and have chosen to strike back in a presumably jovial manner rather than continue to defend a sinking ship...

Posted by: PatHMV at January 11, 2006 01:05 PM

Futher, bk, I wouldn't want to think that you believe that the kind of obvious differences that exist between the sexes, in humans and otherwise, are in any way comparable the differences among various human races.

Posted by: WHQ at January 11, 2006 01:08 PM

Losing? No way, until you guys can explain both

1)where the constitution suggests that separate is inherently unequal

_and_

2) why separate is in fact inherently unequal (as opposed to "usually or often correlated with unequal)

I'm kicking your sorry behinds.

Having separate tennis teams provides and opportunity for the girls that they would not otherwise have were they to compete with the boys. The same can't be said about racial segregation.

I could not agree more. It helps me make my point, which is that sparate is NOT inherently unequal. Sometimes, as in the case of high school tennis teams, it would be more unequal to fail to provide spearate teams, so as to provide equal opportunity. In other cases, segregation is demonstarbly unequal treatment.

Here's the thing: the justices ruled as they did (creatively) to foreclose further battles in which segregation could conceivably be continued if conditions were exactly the same. The did so by declaring that separate was inherently unequal, thereby making all segregation unconstitutional and illegal. They had to declare that they were basically the same in order to make the constitutional connection, thus the declared notion that the mere existence of segregation creates a situation of constitutionally forbidden inequality.

Because If there are any instances, any at all, in which segregation did not amount to unequal treatment, then segregation is not necessarily unconstitutional, it's only unconstitutional in cases where it can be demonstrated that the segration is in fact a case of unequal treatment. The ruling was a clever short-circuiting of the easily-anticipatable outcome had SCOTUS simply said that any segregation that could be shown to be unequal was unconstitutional. Thus the creative and constitutionally unfounded white lie. A very beautiful, very just, very realistic, very courageous white lie. One that I love and support, and one that went beyond the bounds of originalism to construct meaning. Put me in that spot and I'd make the same ruling in a heartbeat.

Posted by: bk at January 11, 2006 01:48 PM

I could not agree more. It helps me make my point, which is that sparate is NOT inherently unequal.

I would argue that separate is inherently unequal, but the inequality in the case of boys and girls tennis teams is acceptable because of the inherent athletic inequality between the boys and girls themselves. I would bet that there have been cases where a girl was allowed to play on the boys team because she was good enough to do so, in which case the usual sexual inequality did not exist.

Posted by: WHQ at January 11, 2006 01:56 PM

I would argue that separate is inherently unequal, but the inequality in the case of boys and girls tennis teams is acceptable because of the inherent athletic inequality between the boys and girls themselves.

Not that bad a counterargument to mine, but one which leaves you admitting that there are such things as intrinsic differences which make unequal treatment a good and wise practice. In other words, you are arguing that there is such a thing as unequal but good, whereas the constitution maintains that unequal is inherently bad. So then you're stuck trying to amend the constitution to distinguish between unequal treatment that's OK and unequal treatment that is not OK.

Don't get me wrong here. i think it's fine that there's a separate girls tennis team, and I'm also OK with letting a really good girl tennis player play on the boy's team if she's been smoking the competition.

When I used to play pick-up basketball, I was always the guy who just wanted to divide the players to make the most competitive teams. I took no pleasure from playing winners if I got on the team that had a huge talent advantage. It was boring. There was nothing better to me than playing in a close game between evenly matched squads.

But I still don't see any case (beyond your simply continuing to maintain it) that simply by the act of separating, you necessarily must also be creating an automatic inequality, because the concept of inquality inheres in separation.

It seems that the hypothesis is simply "separate, therefore different." While difference is often used as a basis for separataion, it is far from the sole basis for separation, and there are cases where things which are identical can be separate.
Identical twins, for example, are separate but equal. At least at conception, for all intents and purposes. Separation only creates the potential for difference. Yet much of the sameness endures over time.

Now you are of course free to accuse me of being a nitpicking hairsplitter, which would be apt since I recently tossed it around. Fair enough, yet please notice that inhere is a particularly strong word which means an awful lot. So I'm guilty here of obsessing over two mental conceptions that I view as often related and sometimes very similar, yet distinct. The more closely distinct items or ideas resemble one another, the more likely casual observers will assume these items to be identical. Yet sometimes the smallest differences are the most crucial.

Posted by: bk at January 11, 2006 02:48 PM

...but one which leaves you admitting that there are such things as intrinsic differences which make unequal treatment a good and wise practice.

Agreed

In other words, you are arguing that there is such a thing as unequal but good, whereas the constitution maintains that unequal is inherently bad.

I am arguing that there is such a thing as unequal, but necessary in practical terms. Boys and girls tennis teams may in fact be unconstitutional, but no one cares enough for it to matter. There likely are other numerous, more important laws and practices in place which are unconstitutional yet continue because no one cares. And thank God for it. Wisdom of crowds and such.

So then you're stuck trying to amend the constitution to distinguish between unequal treatment that's OK and unequal treatment that is not OK.

Nope. See above.

Also, I think we need to make the distinction between equal treatment or equal opportunity and absolute equality. The law cannot make us equal, only treat us equally.

Posted by: WHQ at January 11, 2006 03:30 PM

I am arguing that there is such a thing as unequal, but necessary in practical terms. Boys and girls tennis teams may in fact be unconstitutional, but no one cares enough for it to matter. There likely are other numerous, more important laws and practices in place which are unconstitutional yet continue because no one cares. And thank God for it. Wisdom of crowds and such.

Thank you. Finally someone agrees with me. Product over process. Which doesn't therefore mean that process is unworthy of consideration or devoid of value. The point is people(myself conspicuously included) tend not to care about the process when the product feels OK to them. So most of the people who are complaining about the invalid process by which Roe occurred, it's really because they don't like the product. However, many of these same people would have us believe that it's truly the process that they value, and that it's merely a coincidence that they also don't happen to like the product.

I do not say this to disparage either Simon or Pat. I concede that it's very possible that they either simply believe what they say and are unaware of their subconscious motivations' warping effect upon their reasoning, or that they truly do believe that the process needs to be virtually sacrosanct, that things would work far better that way, and they truly would be satisfied if their preferred and deified process led to exactly the same product. Even though in their admitted hearts of hearts they feel that the process they wish to deify would inevitably lead to the inherently more just result that abortions would be far more substantially curtailed, or completely illegalized.

But then I work in math. I DO believe in coincidences. YMMV.

Posted by: bk at January 11, 2006 04:26 PM

I'm somewhat ambivalent about the process vs product debate, but I have to make a distinction here.

There is no violation of process when no one raises an issue with enough force that it enters the process in the first place. My argument is not that the product is more important than the process in this case. My argument is that the product has thus far had nothing to do with the process, and that's just fine.

Let's assume for argument's sake that boys and girls tennis teams are unconstitutional. That they exist is not a violation of the process until someone makes a stink over the unconstitutionality strongly enough that it goes through the courts (of law, not tennis courts) and the courts make up some baloney reason for keeping separate teams in spite of the constitutional problems.

Now I kind of feel bad for not supporting your product over process position. I hope you're not too disappointed in me. I'll root for the Patriots if it helps.

Posted by: WHQ at January 11, 2006 04:56 PM

By the way, I do completely agree with this part of it:

So most of the people who are complaining about the invalid process by which Roe occurred, it's really because they don't like the product. However, many of these same people would have us believe that it's truly the process that they value, and that it's merely a coincidence that they also don't happen to like the product.

If that was your entire point about product over process, then I do support your position.

Posted by: WHQ at January 11, 2006 04:59 PM

Brian, you have veered far too close to an ad hominem attack for my tastes, so I'm going to abandon this conversation.

My first and foremost concern is for the rule of law. I value strong debate over what the law is, and interpreting and applying the law is not always clear cut. You, however, have expressed disdain for the rule of law (the "process" you don't care for so much). I respect the rule of law and argue passionately for it both when it leads to policy results I like and when it leads to policy results I detest. I do not (nor, I am certain, does Simon) pick and choose to support the rule of law only when I like the results it provides.

Posted by: PatHMV at January 12, 2006 12:39 AM

Pat,

Since you're abandoning, I won't go on too long. But I feel I need to clear something up. I absolutely do NOT disdain process, as you seem to think. I simply don't deify it. Regardless of what I might have said above, or how you might have mistook what I said, for me it boils down to caring more about the spirit of the law than the letter of the law, even if that preference is perhaps a more risky view.

And sorry, but that just doesn't mean, as you apparently would try to frame it, that you care about the rule of law and I don't care about the rule of law. I care deeply about the rule of law, but I don't ever forget that the rule of law is (in my mind) a means to a higher (although abstract and ultimately unachievable ideal) end, justice for humans. The imperfect system that applies the rule of law, created and applied by imperfect humans, occasionally requires imperfect human circuit breakers. When this occurs, the imperfect human system of the rule of law does not grind to halt or cease to be. It keeps grinding along imperfectly.

Posted by: bk at January 12, 2006 10:08 AM

Well, then, how about you don't cast aspersions on my motives and I won't cast aspersions on yours?

Posted by: PatHMV at January 12, 2006 11:03 AM

Can we cast asapargus on melons instead? I want mine with Hollandaise.

Posted by: Tully at January 12, 2006 11:23 AM

Sorry Pat, I meant specifically NOT to cast aspersions while still being honest. Clearly I failed with you. Let me try again.

I believe there's a general set of people who make many of the same arguments as you do on this topic. Many mebers of this set have adopted these arguments as a matter of a convenience. They don't really care whether Roe is bad law, they just don't want abortion to be legal. But I do not believe that you are one of the people who adopts these arguments as a matter of convenience.

I believe that you honestly and truly believe in your stated views, and that you believe they are as principled as they can be. Now my personal opinion is that each and everyone of us is prone to believing that we are more principled and consistent and fair-minded and less subjective than we actually are. Each of us is imperfectly aware of the extent to which our emotions and subjective responses may color our rationally-peecieived principles. So I'm only classing you in the same category as myself and everyone else, becuase such things are not quantifiable.

If I were more pro-life, would Roe bother me more? The data says probably yes, as a matter of probability. This leaves me calling attention to my own (very subjective impression) that the vast majority of people who oppose Roe on the grounds that it is bad law happen to be either purely pro-life or favor fairly substantial restrictions. Let me balance out this time by adding that the vast majority of people who support Roe seem to happen to be either purely pro-choice or opposed to most substantive restrictions upon abortion.

Posted by: bk at January 12, 2006 12:57 PM

BK,

The problem with emphasizing RESULTS over PROCESS is that it is PROCESS which allows you and I the confidence to settle any disagreements we might have in a court of law rather then picking up clubs and beating each other about the head with them. People very often can't come to a mutualy accepteble consensus about a particular RESULT. However those same dissenting individuals very often can come to a mutualy acceptable consensus on a PROCESS for determining such a RESULT. Inevitably one side WILL be disappointed with the RESULT reached, however, if they have relative confidence that the PROCESS they agreed to was strictly adhered to when reaching that result more often then not they'll be willing to bite thier lips and go on with thier lives. They'll do so because they have some confidence that the NEXT time they have a disagreement the PROCESS will afford them a fair chance of achieving a RESULT favorable to them.

Conversely if the mutualy agreed upon Process was not strictly adhered to, not only will you have a party disapointed with this particular RESULT but you'll have a party who is unlikely to believe that they can EVER recieve a favorable result from the process (cause it's stacked against them). How likely is it that a party who believes that they have been CHEATED is willing to live with an unfavorable result? How likely is it that they will trust a mutualy agreed upon process to achieve a result in future? What else then is left them to resolve disagreements....but picking up a club? This is EXACTLY how things like riots and civil wars get started.

As it so happens, I'm not horribly disappointed by the RESULTS of Roe (I'm truely undecided on abortion but tend to lean toward the pro-choice side on a gut level) however, the PROCESS by which it was arrived at scares the HECK out of me. Why? Because it leaves me with little confidence that when the Court addresses an issue that I DO happen to care about that they won't pull the exact same stunt....and this time I won't be happy at all with the Result. In fact, I've already seen plenty examples of it happening (Kelo anyone?).

I've read the Constitution, (IMO) it establishes a pretty fair set of rules (and Processes)....and if strictly adhered to would result in a set of laws that would be very livable for me. Despite all the foibles and failings of the Democratic process.....I have REASONABLE confidence that it will result in a set of laws that I can more or less be willing to live my life under.....particularly when tempered by Constiutional restraints. Put 5 Ruth Bader Ginsburgs on the Court.....and it scares the CRAP out of me what rules they might come up with that I'll be forced to live my life under.

Posted by: cengel at January 12, 2006 06:21 PM

As a matter purely of law, was the Roe decision really that bad? I can understand the arguments against it. But I never understood it to be so egregious that it should scare the crap out of anybody. Am I wrong about that?

Posted by: WHQ at January 13, 2006 09:16 AM

Either I've spoken too strongly or my point is getting missed, or both. My point is that I care more about the product than about the absolute perfection of adherence to process.

All of the bureaucratic processes we create are imperfect, less than 100% efficient. When the furnace man comes to my house, if he tunes up my oil burner (people outside new england might be baffled by that) to 87% efficiency, that's actually good.

So my question, as honed, is how much do we obsess about that other 13%. And the answer, of course, is that it depends on a variety of things. As a rule, I'm willing to accept a reasonabel amount of inefficiency when I believe that it's been whittled down as much as it can. Has it, in this case? I dunno.

So Cengel, I lean towards agreeing with you from a civil libertarian's perspective, that things such as Kelo are troubling. When I add in the blithe curtailments of freedom of speech in Europe that seem to be making solid inroads here in America, and see things like companies promising to fire employees who have the temerity to smoke cigarettes, I'm worried.

Of course, that places Roe, as the questionable establisher of a constitutional right to privacy, in a peculiar spot. Surely a right to privacy is a desirable bulwark against the invaders of our civil liberties. But if its foundation is questionable, can we ultimately rely on its utility? For me, the bottom line if I'd rather have this as questionable right than not at all, but that doesn't mean we wouldn't all be better off establishing one using the front door, as it were. So my view of Kelo is that maybe it's like a temporary crown or a bucket on the floor under a ceiling leak, in that it's better than nothing.

This is the point where we acknowledge the basic conundrum that better is the enemy of best. Which while true, provides little help when we seek to apply it to specific situations.

Perhaps we shouldn't wait for Roe to get overturned before we begin an effort to establish a front-door constitutional right to privacy whcih provides explicit protections in some instances and places a broad honus on the government and other invasive entities to prove that they have a serious and legitimate substantive interest in the pareticulars of an individuals life before they are allowed to dig into it in detail...

Posted by: bk at January 13, 2006 09:21 AM

Let me pose this question: Which was a worse decision purely as a matter of law? Kelo or Roe?

How about Roe or the latest high-profile medical marajuana case (can't remember the litigants)?

It seems to me that reading a right of privacy into the constitution is not as bad as taking words that are in the constitution for a specific reason and twisting them into something in opposition to their intended meanings.

Posted by: WHQ at January 13, 2006 09:45 AM

Roe was a worse decision as a matter of law. Even many liberal scholars will tell you it's pretty bad.

As a policy matter, it's even worse, because the consequences cannot be remedied except by a supermajority to amend the constitution. Kelo can be overturned by individual states and individual communities, as we have seen very clearly since the decision. A mistaken ruling leaving power in the democratic branches of government does not require decades and very difficult effort to undo. A mistaken ruling yanking power from the democratic branches of government to the unelected judiciary, however, is much more difficult to undo.

There are a variety of legal analysis I could go into which would show why Kelo is much closer to being a correct decision than Roe could ever be, but I don't feel like it right now. I would point out that Kelo relied VERY heavily on the interpretational precedents of the Supreme Court, and was the logical outcome from applying those precedents. Proponents of "super precedents" and keeping Roe just because the Supreme Court said it once upon a time should pay attention to that fact.

Posted by: PatHMV at January 13, 2006 11:26 AM

Brian, I would also point out that in saying this:

In the general public's view, several decades of something being the law of the land tends to legitimize it. Now I know you don't like that and don't think that's right, but it's how people tend to think.

you are making the "superprecedent" argument. Hey, we've been following along as if this is the law now for awhile, so it is legitimate. That's a process argument. You're not saying it's right, just that it went through a legitimization process and therefore some other process should be followed to change it now.

Your argument is basically that Roe is "settled law" and changing it through the same process that made it settled law to begin with is illegitimate. You demand that only another process, the constitutional amendment process, is the legitimate process by which the law can be changed now.

But you continually trivialize process in this argument, so you have no right to invoke process protections in support of your argument.

If you believe that the process leading to Roe was sufficient to change the constitution and create this right of privacy, then how can you oppose, on any process ground at all, using the same process to undo the decision?

Posted by: PatHMV at January 13, 2006 11:30 AM

I think Kelo is worse because IMO it's rationally indefensible. I believe it was O'Connor in dissent who said it much better than I, but the basic point is that the ruling leaves no room for an understanding of what public use means beyond "whatever the government feels like doing provided there's some sort of semi-rational public process." Yet it's pretty clearly the intent of the "except for public use" clause (whatever it says exactly) to constrain government power, not give it carte blanche.

The legitimate worry in objectioning to Roe is that the constitution's meaning can become progressive amorphous and potentially uncontrollably expansive. That's a problem to some extent, but one that still leaves things subject to review, and to process. The problem with Kelo is that potentially it makes our base document, as interpeted, potentially contradictory, and therefore dismissable as meaningless. Where Roe is weasely, Kelo is illogical. I can accept weasely-ness if there's a plausible rationale, but not illogicality. In other words, with Roe, I'd say you can make a decent argument that the right to privacy is implied. But with Kelo, I don't think you CAN make a decent argument that the clause isn't supposed to constrain government power pretty specifically.

But it's all hard to quantify. Very possibly my answer says as much or more about myself as it does about the constitution and the alleged threats to it.

Posted by: bk at January 13, 2006 11:30 AM

BK, I get where you are coming from. However, there is one big difference between SCOTUS cases and your furnace analogy. With your furnace, the desired results are UNAMBIGIOUS. Pretty much everyone agrees that a more efficient furnace is more desirable then a less efficient one. In the cases that SCOTUS hears, the desired result is a matter of contention... you have conflicting versions of the desired result....which is why the cases are in Court in the first place.
This is especialy true with issues like abortion, where large portions of the American public vehemently disagree. That makes strict adherence to the process FAR more important then in scenerios where everyone agrees what the result should be.....and it's just a matter of getting there.

Posted by: cengel at January 13, 2006 11:41 AM

Your argument is basically that Roe is "settled law" and changing it through the same process that made it settled law to begin with is illegitimate.

Not quite. Where you say illegitimate, l I'd say unwise. I think that changing it by the same process is entirely legitimate. It's a democracy, we have the power to do it. If we collectively choose to do so, that's just the imperfect system functioning, not perfectly, but reasonably.

My argument is only that if we DO change it by the same process, there may well be some undesirable side effects of doing so, and that they might be ones that leave us worse off, in a more chaotic and divisive state, and left to reconstruct more rigorously the same state that we had before, but destroyed because we undervalued it. For the sake of brevity, I won't describe what those bad side effects could be unless someone else wants me to do so.

But again, I deny that I am as you put it, "trivializing" process. [Perhaps you also feel that I am mischaracterizing your view when I say that you are trying to "deify" it?] I think of my view as generally favoring pragmatic acceptance of "good enough" results, even when all the process I's and T's are not dotted and crossed.

I definitely don't think that the amendment is the only legitimate remaining means of reform. The only sense in which it's really superior is that it would be more definitive. But supposing that Roe is overturned by the same process by which it was established, my HOPE is that we're more ready to handle it than we were then. And I acknowledge that it's possible that this battle did need to eventually be fought more directly by the people. You're determined to view Roe as a gross error that set back the American condition, but even if its overturned, I'm more prone to viewing it as good judicial choice that provided a solid interim settlement.

After all, I'm in favor of reasonable restrictions like parental and spousal notification and the endurance of legality based on viability and the health of the mother. Those are things which I wonder whether the public is prepared to consider rationally, even though I acknowledge that speaking in terms of absolute perfect democracy, they undeniably have the right to do so. Does that make me an elitist? Maybe. If so, my saving grace is that ultimately I respect the legitimacy of democracy even though experience leads me to doubt its perfect wisdom.

Posted by: bk at January 13, 2006 12:28 PM

As a policy matter, it's even worse, because the consequences cannot be remedied except by a supermajority to amend the constitution. Kelo can be overturned by individual states and individual communities, as we have seen very clearly since the decision.

That's an interesting point, and one I hadn't really considered. The only comment I would make is that the nature of the issues are inverse. Kelo grants power to the government and Roe takes it away. The court in granting power does then not force government to use it. My point is, given what the cases were about, how could it have been any other way from a policy standpoint, aside, of course, from the decisions being different?

Posted by: WHQ at January 13, 2006 12:32 PM

Brian, our fundamental disagreement (leaving aside mutual aggravations a la deification and trivialization) is on the effect on the body politic that leaving abortion policy with the people would have had. Leaving aside the process issues and my conviction that the people have the right to make those decisions under our constitution, let me address that.

You say that the people are not or at least were not ready to rationally handle making the decision to legalize abortion. Again, leaving aside the issue that one man's rationality is another man's lunacy, this is an argument for judicial paternalism. "That's too important and too emotional a decision, we're going to decide that for you." It's like a parent talking to a child, or the child talking to the elderly parent in the nursing home.

It's also saying that if you disagree with the court's policy choice, you must be "emotional" or "irrational", or just "unable to handle" the decision. Put in that light, the decision is just plain insulting to anybody who disagrees with it.

As a matter of better preparing the people to "handle" the decision, what works better when teaching children... giving them responsibility to try things out and forcing them to accept the consequences of their decisions, or making all decisions for them and not letting them have any responsibility at all?

I do think the attitude you describe makes you an elitist, and incredibly so. Given a choice between the people and 9 old folks in robes (on policy decisions, not on application of the policy in particular situations), I'll take the people, every time.

Posted by: PatHMV at January 13, 2006 12:43 PM

Here's the rub. You discuss abortion policy being left with the people by striking down Roe. Yet, Roe left the individual decisions on abortions with the people. I don't see how leaving policy in the hands of state governments is somehow more democratic than leaving the personal decisions in the hands of the people themselves. Roe took state paternalism out of the picture, arguably at least.

Posted by: WHQ at January 13, 2006 12:59 PM

Leaving aside the issue that one man's rationality is another man's lunacy, this is an argument for judicial paternalism.

If I grant that, then we can both move on to acknowledging that even though "paternalism" is commonly used exclusively as a pejorative nowadays, it's also common for people to bemoan a general unwillingness of people to take individual responsiblity. And to act responsibly based on their moral conscience, when they are placed in positions of powerful authority. Let's have that cake, and let's eat it too! Yippee!

Your position has always been that judges don't explicitly have the authority to act as they did in Roe. My position has always been that it doesn't matter, because in historically rare instances they need to take it, regardless of the extent to which they have it (which, as we have proven, is debatable). Even if that means that sometimes they'll get it part wrong.

I do think the attitude you describe makes you an elitist, and incredibly so. Given a choice between the people and 9 old folks in robes (on policy decisions, not on application of the policy in particular situations), I'll take the people, every time.

The fact that you had to include an exception makes me question how deeply you actually believe in the people. Essentially you are saying that you'll always take the decision of a mob over a group of scholars, as long as its a policy decision. I think that's a load of crap. Because it depends. Sometimes a council of scholars gets it right, and sometimes its the mob.

So if I'm elitist, and incredibly so, then you are anti-intellectual, and incredibly so. Because you think that on ANY issue of policy, it's always best to trust the average of the views of a large bunch of people, regardless of the complexity of the issue, than it is to trust the views of a small group of educated people that has taken extra care to study and become informed.

Which is all crap, become I'm not elitist, and you're not anti-intellectual. But maybe it's not crap. Maybe you, a highly educated specialist who earns his living by selling his expertise as an advocate, and wholeheartedly believes this expertise is worth the porice, really thinks a crowd of laymen will always get it right. So would you argue therefore, that say, a jury always makes the right decision?

I am simply somewhat tolerant of the exact level of allegiance to process, depending on the results. Which is exactly what the people are, tolerant of process variance depending on the quality of the product. Basically, this is jacksonianism, an arising from political slumber only if real-world things get especially messed up.

Here's the thing: the truth is that sometimes the council gets it more right and sometimes the people get it more right, because sometimes one and sometimes the other has a better handle on what's really most important.

Posted by: bk at January 13, 2006 02:04 PM

Leaving aside the issue that one man's rationality is another man's lunacy, this is an argument for judicial paternalism.

If I grant that, then we can both move on to acknowledging that even though "paternalism" is commonly used exclusively as a pejorative nowadays, it's not always bad. Notice that it's also common for people to bemoan a general unwillingness of people to take individual responsiblity. And to act responsibly based on their moral conscience, when they are placed in positions of powerful authority. Let's have that cake, and let's eat it too! Yippee!

Your position has always been that judges don't explicitly have the authority to act as they did in Roe. My position has always been that it doesn't matter, because in historically rare instances they need to take it, regardless of the extent to which they have it (which, as we have proven, is debatable). Even if that means that sometimes they'll get it part wrong.

I do think the attitude you describe makes you an elitist, and incredibly so. Given a choice between the people and 9 old folks in robes (on policy decisions, not on application of the policy in particular situations), I'll take the people, every time.

The fact that you had to include an exception makes me question how deeply you actually believe in the people. Essentially you are saying that you'll always take the decision of a mob over a group of scholars, as long as its a policy decision. I think that's a load of crap. Because it depends. Sometimes a council of scholars gets it right, and sometimes its the mob.

So if I'm elitist, and incredibly so, then you are anti-intellectual, and incredibly so. Because you think that on ANY issue of policy, it's always best to trust the average of the views of a large bunch of people, regardless of the complexity of the issue, than it is to trust the views of a small group of educated people that has taken extra care to study and become informed.

Which is all crap, become I'm not elitist, and you're not anti-intellectual. But maybe it's not crap. Maybe you, a highly educated specialist who earns his living by selling his expertise as an advocate, and wholeheartedly believes this expertise is worth the porice, really thinks a crowd of laymen will always get it right. So would you argue therefore, that say, a jury always makes the right decision?

I am simply somewhat tolerant of the exact level of allegiance to process, depending on the results. Which is exactly what the people are, tolerant of process variance depending on the quality of the product. Basically, this is jacksonianism, an arising from political slumber only if real-world things get especially messed up.

Here's the thing: the truth is that sometimes the council gets it more right and sometimes the people get it more right, because sometimes one and sometimes the other has a better handle on what's really most important.

Posted by: bk at January 13, 2006 02:08 PM

When I speak of the people I am speaking of the democratic process, particularly as it is established in this country, with the protections our framers built in to guard against the dangers of mob rule. I am not in favor of "pure democracy" as many use that term, including bizarre items like the referenda process used with such frequency in California.

Nor, of course, do I argue that particular groups of people always get it right, without fail. Juries make mistakes, legislatures make (what I consider to be) mistakes, judges make mistakes. Everybody makes mistakes at some point.

What I trust is for the people, acting through the aforesaid political structures, to make the proper value judgments. Abortion involves two conflicting values, respect for life and respect for individual autonomy, though each side would deny the validity of the other's principle in that regard (the left says no "life" is involved while the right says more than a single individual is involved). In making policy decisions about abortion, we must weigh those competing values against each other. It is not a complex decision needing specialized expertise. No matter how either side dresses it up, the point at which "life" begins is a values/philosophical/religious/political question, not a scientific one. I do not trust 5 old men to make that value judgment better than the democratic process. In this area, I do not believe that there is a "right" decision, a single decision of which the entire country could be convinced is correct. Compromise is necessary, and the legal system is very poorly designed to make such compromises.

As for your Jacksonian viewpoint, even if I accept the premise that it is not undesirable for the court to make decisions in that vein from time to time in peculiar and needy circumstances, you have not so far made a very good case for why, in 1972, the needs of the country were such that it was imperative for the court to undo 2 centuries of "settled law" and suddenly discover a previously unknown constitutional right. If you want to make that case, I'd stick with Griswold, not Roe.

Posted by: PatHMV at January 13, 2006 02:40 PM

Even if I accept that Roe is bad law and bad policy, it doesn't follow that 5 old men told anyone that she should get an abortion. And it's only bad policy, as you described it, in so far as it's bad law. The policy problem is not additional.

Posted by: WHQ at January 13, 2006 03:01 PM

you have not so far made a very good case for why, in 1972, the needs of the country were such that it was imperative for the court to undo 2 centuries of "settled law" and suddenly discover a previously unknown constitutional right.

That's not really my argument. I've speculated that that might have been so, but I really have no way to judge, since I was only 8 at the time. My argument is that if a justice truly perceives this, and so acts on his conscience, it's more pragmatic to be troubled by this on the basis of the result, not on the basis of the violation of process.

I think we've said our pieces at this point. Surely it's a good place to declare a stalemate now that WHQ is pointing out the irony that you are more troubled by bad law that takes power away from the state than bad law which grants it more.

Because it messes up the intelligibility and stability of the legal process, in your eyes. Notice that this is just BOUND to trouble a lawyer more than a spectator. :-) Have a good weekend.

Posted by: bk at January 13, 2006 03:16 PM

First, all laws impair the liberty of individuals to some extent. We use laws to impose moral values all the time, most notably recently in the realm of racial issues, where we restrict one person's liberty of, for example, contract, by telling him he must not fail to enter into contracts with certain people because of the color of their skin. Restricting individual liberty for moral reasons and reasons of perceived harm to others is something we do all the time.

Having said that, ok, truce until the next thread on which this subject reappears, you result-oriented, law-ignoring, process-hater! ;-)

Posted by: PatHMV at January 13, 2006 04:25 PM

WHQ & BK,

This again goes to your pre-conceptions of what is actualy being decided. For you the fetus is not a "person" and therefore all that is happening under Roe is that government is being prohibited from placing restraints on the choices of one person.

For those on the other side of the aisle this is not thier perception of the situation at all. From thier perspective a fetus is a "person" and what is happening is that the government is providing a mandate for one person to terminate the life of another person without thier consent.

A direct analogy would be anti-lynching, anti-slavery laws in the civil war era. If blacks are not "persons" then the government has no right to restrict the personal freedoms of individuals who want to terminate thier lives or force them into servitude. If blacks are "persons" then the government has no right to provide a legal mandate (i.e. permission) to people who want to violate thier rights.

This basic difference in perception cannot be seperated from the issue at hand. Your willingness to accept the RESULTS even if the process which arrived at them is FLAWED hinges upon the support for your perception. I'm sure many people on the other side of the issue would be equaly willing to accept a flawed process that makes abortion illegal through-out the United States...and you would be just as outraged by it.

My concern...and I believe Pat and Simons as well (speak up if I'm misrepresenting you guys)... is that MANY such conflicts exists in our society.... abortion is not unique among them....and such conflicts will continue to arise as long as our society continues to exist. The process by which they get resolved is important and it's sanctity has to be preserved because it is neccesary for the preservation of our society (i.e., it is used ALL the time, not just in this one case). It is NOT ok to see it sacrificed in one "special important case" to arrive at a set results that are desirable..... because to the a parties involved EVERY case is a "special important case" deserving of sacrificing the process to get results.....and if we go down that road, the process will devolve into nothing more then a contest to see who can cheat better.

Bottom line, your position is like that of a fan who wants to see thier team win. My position is like that of an observer, who doesn't really care so much about which team wins as they care about the game being called fairly.

Posted by: cengel at January 17, 2006 11:51 AM