Strengthening Constitutional Self-Government

No Left Turns

Giuliani and abortion

There is, he says, no litmus test, which is reassuring, though his people need to get him to say it on something other than Fox Sunday Morning, when the people who most need to be reassured are likely to be in church.

But there is at least one other problem with his position, noted in part by Ed Whelan this morning. Giuliani seems to regard abortion as largely a judicial problem, with political qualifications and limitations only as permitted by the courts. I agree with this simply as a characterization of the current judicially-imposed status quo, not as a "natural" or necessary state of affairs. To the extent that Giuliani has nothing more to say, he’s dodging and hiding behind the robes, which is not a becoming position for someone of his stature to take.

But I wonder also about the relationship in his mind between choice and strict construction. Does he think that there’s a right to choose? Has he used precisely that language? If so, where does that right come from? I take it as given that no one thinks that such a right can be strictly construed from the Constitution. Is he then speaking of a "natural right" (or something like Ginsburg’s autonomy), or of a positive right that can be identified and enshrined in the law or the constitution by normal political processes (something like Scalia’s position). I could live with the latter position (which is a version of strict constructionism), but not the former (which is not).

Here’s then what I would have Rudy Giuliani say. First, he recognizes that, at the moment, only the courts can get us out of the mess that the courts have created. Second, he’s committed to appointing judges who are modest about their roles and strict constructionist (meaning faithful to the Constitution) in their methods, so that in due course, the courts will help us out of the mess that they’ve created. And third, that once we’re out of this mess, regardless of his personal preferences or his respect for the preferences of others, any "right" to choose would have to be the result of a legislative process, either in the states or at the federal level. He and I might not fully agree on what such a law would say, but we could well agree on almost everything up to that point.

That’s how, I submit, Giuliani could reconcile his respect for choice and his affinity for strict constructionism.

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