Strengthening Constitutional Self-Government

No Left Turns

Thoughts on the Dems and Alito

A couple of things have become clear from the Alito hearings. First, the Democrats cannot stop the nomination from going forward. Just as with Chief Justice Roberts’ hearings, they have no argument against Alito. And, Alito has been able to show the world that he is a very smart guy, and has given the Chief a run for his money. So the deed is done. Good for Bush, good for the country, good for the Constitution. Which brings me to my second point.

The Democrats have revealed (once again) that all they care about is the abortion issue, and what they call a woman’s right to choose, or, so called privacy. And this is a problem for them. A big problem. While the Republicans--including their nominees to federal courts--can talk about upholding the Constitution, interpreting it according to the original intent of the framers, the difference between legislating and judging, and so on, the Democrats are relegated to talking about the necessity of upholding precedent (read, saving Roe v. Wade). You must admit that this is a little weird considering that they have poured what intellectual capital they had since the Progressive Era into something called "the living Constitution" (read, interpreting the thing as you please). They really can’t allow a Republican dominated Supreme Court to agree that the Constitution is a living, breathing, changing thing now can they? The Democrats are in a bind for sure and the political effects are that these hearings do not give them the opportunity to put forward their view of how to interpret the Constitution, or what the real work of the Supreme Court should be. In fact, all they can do (read, Kennedy) is bark and bray and howl and distort and make good wives cry. I bet they are praying (read, hoping) that there are no other retirements from the Court because the same thing will happen.

Discussions - 12 Comments

Peter, nice observation about the bind the Dems are in: they have to talk up precedent in the case of Roe, while living constitutionalism runs in the other direction. And, while an intellectually honest "progressivism" could pull off the trick of resolving that conundrum, it’s impossible (because suicidal) for the Democratic pols to utter it in broad daylight. Of course, tons of liberal law school profs are doing just that in the groves of academy. Hence the ongoing need to teach the Founders, Marshall, Lincoln, the framers of the 14th Amendment, et al. at Ashland, Hillsdale, and elsewhere.

I do not think the intellectual/logical problem is as hard as you describe unless I have missed something. The living constitution and Roe as precedent could certaintly be compatible.

All one has to argue is that the Constitution is evolving in a Hegelian matter. The Constitution is evolving in a way that permits greater personal autonomy, etc.. Lots of Supreme Court opinions speak of this (when they have little law to support their position) Any case that enables this growth is valuable precedent, any case that does not was wrongly decided and should be overturned.

Personal freedom and the like then becomes the overarching way to interpret the Constitution, it occupies exactly the same place as The Declaration does for natural rights people, except there are no limits on personal freedom except when it harms other people, defined in some broad way. (in natural rights one would assume people owe duties to God per Locke, or that nature itself creates limits)

People who advocate legal interpretation of the Constitution through a natural rights prism should pause and reflect whether their method and the "living constitution" method is the same, and if so, if they should continue to propose natural rights as the ultimate legal standard for constitutional interpretation.

The Republicans own the center on the abortion issue. They aren’t the ones pretending that there’s anything in the Constitution about abortion. Their position is simply to let voters decide instead unelected judges. How can a moderate disagree with that?

Abortion is the rights weakness not the lefts, it clouds allot of issues and its not likely to change soon via any route


Re: Alito’s inevitability, it is simply too early to speak so confidently. The Democrats are the party of dirty tricks. They have a long record of winning with dirty tricks. Republicans, including Republican senators, are passive and complacent by nature. Let’s hope they are not caught napping next week.

The replacement of Rehnquist by Roberts was relatively insignificant -- an apparent conservative for a known conservative. The prospective replacement of O’Connor by Alito is more important. Alito has a long conservative record as a judge. O’Connor has a long record of confusion, including frequent bowing to liberal values and a distaste for constitutional principle. She has proven to be a very substantial asset for the liberals. They will not let this seat go with just three days of questioning, especially when that questioning was by some accounts bungled.

Whatever the ultimate outcome with Alito, it will not strengthen the president’s hand for future nominations if he squeaks by with, say, no Democratic votes but Nelson’s and the opposition of, say, three liberal Republicans.

In addition, Republicans on Judiciary and elsewhere must hammer into the public’s mind the outrageousness of Senators Kennedy and Schumer. If they don’t, an important opportunity to begin changing the confirmation process, and to give us a decent chance of winning a fifth vote for constitutional government on the Court, will be lost.

It’s too early to relax and say it’s over. Carpe Diem.


Alito, if confirmed, being the fourth vote (we hope) for constitutional government. We’ll still need a fifth, and to be perfectly hardheaded about this, a sixth, to ensure against Scalia’s retirement.

With the ’06 Senate field shaping up as a net loss for the Republicans, we will have out work cut out for us, even if we get lucky with a liberal retirement on SCOTUS.

I very much agreed with Mr. Sparks’ statement (until the last paragraph, but that’s a discussion for another day). Hadley Arkes, for example, in his George Sutherland book, points to the comparable "logic" of natural rights and autonomy jurisprudences. The differences between a nature-based rights system and a necessarily open-ended autonomy one (which would be more than Hegelian, I’d think) are chasmic, though, as Mr. Sparks apparently indicated. Bob Faulkner has a wonderful exposition and critique of autonomy jurisprudence (under its earlier heading of "equal dignity") in an old AEI book. I highly recommend looking it up.

A little bit of topic, but I continue to be confused...Why is the Left so terrified that Roe vs. Wade might be repealed? My understanding, limited as it might be, is that repealing it would simply result in the decision to make abortion legal or illegal would then devolve to the states. It would NOT specifically make it illegal. In addition, why is abortion considered the be-all and end-all of women’s rights? What is the cosmic significance that the Left feels is attached to the "right" to an abortion? It seems to me there are far more important rights on which to focus.

Chris W. - My friends who feel strongly about this issue see it as important for a number of reasons. First is the right for a woman to choose what does or does not happen to her own body. The right to choose NOT to give birth is thus part of a system that allows a woman to say "no," and to say "yes" to sex, to pregnancy, to the choice over education, career, clothing, etc..

On a wider scale, other cultures impose greater control over female behavior than they do males: the chador, foot-binding, clitorectomy, house-boundedness, and so on.

So, my friends also see this as related to the issue of religion’s incursions into government.

Frankly, my friends will not talk with me very long about this issue because I lack their purity and singularity of opinion.

That’s good to know, Fung. Perhaps there is hope for you after all. But the intolerance of your friends should tell you something about the political types you run with...perhaps they are the crazed ideologues, yes?

To answer the question posed by Mr. Whitaker (and I am a liberal, so I know of what I speak), many of us on the Left view the devolution of abortion rights to state legislatures presents a fundamental unfairness to those for whom abortion is often the most crucial: the poor. You of course correct that overturning Roe would not make the choice to end pregnancy illegal, but this is an issue that should be handled on the federal level for reasons I will try to explain (though given a fundamental philosophical difference, I don’t expect you to find them convincing).

Let’s assume that Roe is overturned and abortion becomes illegal in the state of Alabama. A poor and single teenage girl in Birmingham becomes pregnant and decides to seek an abortion, but is prevented by state law from receiving one. Abortion is still legal in New York, but travel between the two states is too expensive for the girl to consider this option. Thus, her options are: 1)deliver the child, likely with a detrimental effect upon her life and ability to provide for herself and into very adverse circumstances for the child; or 2) seek an illegal abortion, with high probability of complications.
This is unfair (14th Amendment), as a similarly situated woman in New York would have a much better chance to procure the abortion.

For this and a host of other reasons, abortion is a matter not only of privacy, but of fundamental equality. I know we aren’t going to agree on this issue, but I present this argument as a good faith attempt to answer your question. Thanks.

WEll according to you Nathan, if Murder was legal in some states but not in others than the people who wanted to comitt murder in the states where it was legal would be discriminated against. If you ask why I compare Murder to Abortion the answer is simple-- They are one in the same! End of debate.

And Dain I don’t think there is any hope for Fung judging by some of the garbage I’ve seen him spewing on here in the past.

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