Strengthening Constitutional Self-Government

No Left Turns

Blowing out the moral lights of the Republican Party, if not the nation

Pro-life stalwart Hadley Arkes worries that a Stephen F...I mean Rudy Giuliani nomination would marginalize pro-life voters within the Republican coalition and hence within the nation as a whole. Here’s a snippet:

It is conceivable, then, that from the standpoint of the pro-lifers it might be better to lose to Hillary Clinton than to win with Rudy Giuliani. The Republican party left standing after the defeat would still be a pro-life party. In the film Ninotchka, Greta Garbo explains to people in Paris the Stalinist purges back home: “We will have fewer but better Russians.” The Republicans might be diminished, but they would be essentially intact as a pro-life party; and, when the electoral winds shift again, they have a chance of coming back with their character intact.

He recognizes how bad a Clinton presidency would be for his cause, and so imagines circumstances under which he could voter for a ticket headed by RG but with, say, Brownback or Romney as a running mate:

Faced then with the possibility of a Democratic presidency determined to weave the ethic of abortion rights more firmly into our law and to have its judges install same-sex marriage, a Giuliani candidacy could offer some slender grounds of hope. Under those conditions, I might bite my lip, vote for him, and indulge those hopes. But they would be the hopes of the supplicants. And they will be affected at every point by the awareness of just who has the upper hand, and just who, in this party newly reshaped, does not matter all that much.

Read the whole thing.

Discussions - 29 Comments

The trouble is that Giuliani ain't Stephen Douglas, who said the Constitution "don't care" about slavery and that each state and territory can decide for itself. Scalia, more or less, is Stephen F, and from that genuinely pro-choice position both DRED SCOTT and ROE were wrongly decided.

Although it's possible, we're unlikely to get a court that rules for a Right To Life. Nor are we likely to get 3/4ths of the states to ratify. It is very possible to overturn Roe and return to the status quo ante however.

I wouldn't like a Guliani ticket, but I'm no purist, and especially when it comes to the Clintons. Even though their politics are slighty more moderate than their wacky party, their lack of character does it for me. I'd vote for Ron Paul and his Winged Monkeys first.

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I think Hadley Arkes has accurately set forth the dilemma for pro-life Republicans (which term ought to be, and truly is, redundant). No pro-choice or popular sovereignty position is compatible with the right to life or liberty, because choice and sovereignty are not principles but conditions. That's why popular sovereignty led to a right of property in a negro, the Kansas-Nebraska Act to Dred Scott. The reversal of Roe v. Wade is not merely to return abortion regulation to the states but to return it with the stipulation that unborn children are persons under the equal protection clause of the 14th Amendment. The term "pro-life Republican," even "conservative Republican," rubs me the wrong way just as the term "Italian American" or "German American" did Teddy Roosevelt. If Republicans are not pro life and conservative, than they are not Republicans but something else. That's the "big tent" for protecting human life and conserving our Constitution and way of life.

I think that the emphasis on abortion only plays into Giuliani's hands. Of the 30% of so who support him, many seem to like that he "stands up the social cons".

His multitude of serious weaknesses in other areas gets overlooked in this. Rudy's support will start to crumble if/when people start to look at the complete man, not just this one issue.

You'll know that has started to happen when places like this and NRO start to comment on his shockingly bad record on free speech issues, to give just one example.

"Ron Paul and his Winged Monkeys"



Real mature there Noel.



"Of the 30% of so who support him, many seem to like that he "stands up the social cons""



I agree John. Many of the people that I know who support him do so BECAUSE he is against the so cons who they have never liked. They like so con votes, but otherwise want them to shut up. Why on earth would someone want to reward these knuckleheads?

The reversal of Roe v. Wade is not merely to return abortion regulation to the states but to return it with the stipulation that unborn children are persons under the equal protection clause of the 14th Amendment.

It is not for the courts to make that determination. Such a decision would require a constitutional amendment and the input of the people.

We are a people and a nation of states governed by a Constitution, which governs the Supreme Court no less. The very first point of Roe v. Wade was to rule that the unborn child is not a person. That was an error and an injustice that must be corrected. The Court did not remove jurisdiction from the states so much as lay down a new rule for abiding by the 14th Amendment. The whole question turns on what constitutional principle governs state laws, which is what Roe corrupted by its nationalizing abortion on demand. The Court reversed Plessy v. Ferguson in Brown, why not Roe? There is no state power to authorize the killing of innocent human life, any more than there is any federal power to do so. Such a state would be a despotism, not a republic, and our Constitution guarantees to every state a republican form of government.

The 14th Amd. is just gravy:

"We, the People of the United States, in Order to...secure the Blessings of Liberty to...our Posterity, do ordain and establish this Constitution for the United States of America."

Mr. Arkes does not mention one possibility in a two- pro-abortion party scenario; a third party. Or perhaps some voters simply withdraw, also causing Republicans to lose. I would vote Guiliani if forced, but many wouldn't. 10 out of 10 babies wouldn't.

The very first point of Roe v. Wade was to rule that the unborn child is not a person.

The courts have no juristiction to decide what is and what is not a person. And they should not have such power. That would be a despotism and a repudiation of a republican form of government.

The marginalization began during the Bush administrations. It began with a GOP leadership that allowed Arlen Specter to become Chairman of the Judiciary Committee, when he played such a huge role in torpedoing the nomination of the most qualified candidate for the high court in American history.

Why are we pretending that the pro-life movement and the GOP leadership were on excellent terms, and all of a sudden here comes this guy from NYC who is rocking the boat.

Who tried to worm through Alberto Gonzales for the high court, who nominated him for the AG? Who surrounded himself with pro-choice flunkies? Who let Andy Card have a seat at the table on potential judicial nomination, after he got through that fraud Souter, along with Warren Rudman and John Sununu Sr.

And how could we possibly go with a creepy Brownback on the ticket? Don't you guys recall his weird debate performances, "The world is flat, the world is flat...."

And as for Romney, how does he lend any Conservative luster to a ticket? He's got his own problems, more than any other candidate.

Let Giuliani get the nomination, let him select some serious type like Duncan Hunter.

Hunter is rock solid on the life issue, BUT ALSO, he's rock solid on another issue that Giuliani needs some bolstering, and that's the border.

As to the Arkes'article itself, it is very unfortunate that Christians have analogized the abortion issue to slavery and Dred to Roe. The Constitution is silent on abortion. (One could argue that is not true, but that is for another day.) The Constitution was not at all silent on slavery. It clearly acknowledged the practice and regulated it. (Banning importation after a future date certain.) So Dred Scott, whether you think the decision was Constitutionally correct or not, was not just inventing a novel interpretation as was Roe.



This slavery/abortion analogy has lead too many pro-life Christians to embrace a Lincolnian centralist view. It has not served their cause or the country well.

Isn't this an aspect of the argument from earlier in the year about Christians keeping their religious convictions out of the political debate? The abortion issue is one people do not want to think about anymore and especially not talk about anymore. Is it too painful? People do not argue the life aspect of it. They know. If this issue has become lame, an embarrassment to be ignored in polite society, then polite society is morally bankrupt. Mr. Reeb's point in #4, that to be Republican and conservative ought to be synonymous with being pro-life and Mr. Arkes' point, that it is not, evokes the political dilemma that makes this such a difficult campaign. Most pro-life people I know are reluctant to choose a candidate. They do not even want to think very much about the Republican candidates, but honestly, do not seem to consider the Democratic candidates a possibility at all. So, yes, we bite the lip and vote for the candidate with which we have the most political influence and with the Democrats we have none, especially not on this issue.

Hunter is rock solid on the life issue, BUT ALSO, he's rock solid on another issue that Giuliani needs some bolstering, and that's the border.


If Giulinai sucks do badly, and he does, why not just go with Hunter? It's not like the VP has any power to do anything.

Unlike the draft dodger, Hunter is a Vietnam vet. And his son is a Marine serving in Iraq.

The Dems claimed, falsely, that Bush used influence to get out of the draft. It will not be false when they say it about Giuliani.

Why are we pretending that the pro-life movement and the GOP leadership were on excellent terms, and all of a sudden here comes this guy from NYC who is rocking the boat.

There should be a Society For the Prevention Of Cruelty To Strawmen to handle this sort of thing.

I would go with Hunter. And I've often noted Hunter enjoys the support of Ann Coulter and Chuck Yeager.

But Hunter isn't going to win the nomination. Sure, I'd prefer him, but I can't allow my hopes to govern my thoughts and my assessment of the situation.

And for some, how could they have forgotten the nomination of Souter. How could they have forgotten the back-door campaign to nominate Gonzales, and how could they have forgotten Harriet Meirs.

Let's just run down the list here. Who nominated Harry Blackmun who wrote the majority opinion on Roe? Who nominated William Brennan? Who nominated Berger? Who nominated Sandra Day O'Connor, who nominated "Flipper" Anthony Kennedy? Who nominated Souter?

A little told tale throughout this whole drama is that the majority of the Judges who've held firm on Roe were nominated by REPUBLICANS.

When was the last time a Republican President or Vice President presented himself in person on the big pro-life parade that happens every year?

The facts hurt. Because they demonstrate a party leadership that has played the base. The leadership doesn't really want to see Roe thrown back to the several states, they're quite content to keep the issue, keep the home fires burning so to speak, and all the while vote up for the high court people who at the final resort, aren't really going to do much about Roe. That's what's been happening.

The GOP leadership intended to do the EXACT same thing this time around, but after years of barely veiled deception, the base DEMANDED action. And but for the raw fury of the base, we wouldn't have Roberts, and we wouldn't have Alito.

We would have been saddled with two intellectually incoherent wimps, Gonzales and Meirs. THOSE TWO NOMINEES might very well have gone down as THE WORST high court nominees in the history of Anglo-American jurisprudence. THAT'S what Bush and the GOP leadership had in store for us. THAT was going to be their gift to us, just like the Dubai deal, just like their squalid "signing ceremony."

Conservatives are fixated on the issue of the fetus, not because of compassion, but because they're anti-woman. And not surprisingly, those in the fore front of these battles are always conservative white males who are obsessed with power and domination, especially over females.

Blastocysts are not people.


"The facts hurt. Because they demonstrate a party leadership that has played the base. The leadership doesn't really want to see Roe thrown back to the several states, they're quite content to keep the issue, keep the home fires burning so to speak,"



I agree with Dan entirely. The GOP leadership doesn't want Roe to go away. (Maybe a few do.) If they did, they would have passed legislation limiting the jurisdiction of the Court when they were the majority. Instead they "support" a Constitutional Amendment which we all know isn't going anywhere any time soon. The same is true with gay marriage.



I agree with Arkes here. Not about his vote, but about his assessment. "Under those conditions, I might bite my lip, vote for him, and indulge those hopes. But they would be the hopes of the supplicants. And they will be affected at every point by the awareness of just who has the upper hand, and just who, in this party newly reshaped, does not matter all that much."



Those who argue that conservatives should vote for Rudy if he is the nominee need to realize that to do so would make them supplicants (good word). It is silly to pretend that a Rudy nomination could somehow be a positive good.



What I have said all along is that we need to stop acting like supplicants, and start acting like men. If the GOP is stupid enough to nominate Rudy, then we should not vote for him, period.

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Perhaps John in #10 has forgotten that the U.S. Supreme Court, whatever its errors, is a co-equal branch of the federal government and is the final arbiter on the meaning of the Constitution for all the states of this Union. The 14th Amendment stipulated that all persons under the jurisdiction of the U.S. are entitled to due process of law and equal protection of the laws. No court or legislature prior to 1973 had determined that an unborn child was not a person. There was some diversity among the states with liberal New York and California legalizing abortions and Texas placing severe limits. But instead of laying down a uniform rule of constitutional interpretation that upheld the humanity of the unborn child, the Supreme Court chose the Dred Scott route and laid down the opposite rule. But it could not escape making a ruling as the construction of the Constitution is its proper role. An abuse of that power, and Roe was an abuse, is not an argument for the forfeiture of that power. It is true that state legislatures also have the power to interpret the Constitution, but all must be bound by a uniform rule, which it is the job of the Supreme Court to promulgate when states deny constitutional rights.


Red in #14 is wrong in supposing that Dred Scott was not novel. Why did the Constitution make provision for ending the slave trade if the framers of it did not disapprove of the practice? The principles of the Declaration, which give the Constitution its purpose and authorize the establishment of the government, are in conflict with slavery, and the authors of the Federalist Papers don't hesitate to condemn the slave trade (see Federalist 54) as barbaric. Republicans in 1857 argued that Dred Scott was novel and Democrats knew that it was but lied about it. Had the Democrats won the election of 1860, we might have slavery still. Republicans were not centralizers but determined to make constitutional rights safe for everyone, not just slaveholders or white people. Progressivism, not Republicanism, brought us Big Government.

Dan in #18 is right to complain about the quality of judicial appointments by Republican presidents. Their error stems from a narrow vision of the judicial role, such as strict construction or original intent, which doesn't begin to get to the heart of the matter, which is that our Constitution is a republican one, dedicated to securing the rights of all and authorizing our government to defend us against all enemies foreign and domestic. Presidents' bad nominations show that judges are not alone in their confusion. The problem is not who decides constitutional questions but on what basis. The problem for years has been a Senate which is determined to have judges to enable legislators to avoid responsibility for making tough decisions, and then blaming the courts when thsoe decisions are unpopular or even unjust.

Tom Pain in #19 caricatures the Republican position on abortion. Does he not know that most of the leadership of the right to life movement is female? Throwing mud is not an argument.

Richard,



"the U.S. Supreme Court, whatever its errors, is a co-equal branch of the federal government and is the final arbiter on the meaning of the Constitution for all the states of this Union."



That is WRONG, WRONG, WRONG!!!! Nothing in the Constitution says that the Supreme Court is the "final arbiter on the meaning of the Constitution." Article and section please. That is a myth. Every co-equal branch has the equal responsibility of determining what the Constitution means as does each State. The Congress decides on constitutionality when they vote on a law. The President decides on constitutionality when he signs a law. The Supreme Court can rule on the constitutionality of a law in a case that is before them. (Which is binding only on that case.) And the States can judge a law unconstitutional and nullify it. (Needless to say, none of these branches have done a very good job of following the Constitution.)



Also, the idea that the Constitution is somehow dependant on the Declaration and is merely the technical working out of the ideas of the Declaration is Jaffaite nonsense and an excuse for reading universal rights and egalitarian liberalism into the Constitution where they do not appear.



Roe discovered a "right to privacy" within the "penumbra" of the Constitution. This was novel because it was just making stuff up. It was not even a disguised attempt at actually interpreting the Constitution. Dred was a legitimate attempt to interpret the Constitution whether you consider the outcome correct or not. You can not try to read a prohibition against slavery into the Constitution.



And one reason the Founders forbid the importation of slaves after a certain time was not just because they opposed slavery and the slave trade (some did, some didn't), but because they had demographic concerns. And Northerners were concerned about the South gaining too much political power (based on the 3/5th clause).

Perhaps John in #10 has forgotten that the U.S. Supreme Court, whatever its errors, is a co-equal branch of the federal government and is the final arbiter on the meaning of the Constitution for all the states of this Union.

The Constitution does not say that the Court is the "final arbiter on the meaning of the Constitution". This is a power which the Courts have claimed for themselves, but it is not in the Constitution.

14th Amendment stipulated that all persons under the jurisdiction of the U.S. are entitled to due process of law and equal protection of the laws. No court or legislature prior to 1973 had determined that an unborn child was not a person.

And they did not stipulate that the unborn child WAS a person either. Because as I said, that is not something the courts have the power to declare. I wish you had addressed that point in your rather lengthy response, since it is the central issue here.

But it could not escape making a ruling as the construction of the Constitution is its proper role.

Where the Constitution is silent, the proper role of the nine busybodies is to be silent as well. And the Constitution is silent as to when life begins.


The principles of the Declaration, which give the Constitution its purpose and authorize the establishment of the government, are in conflict with slavery,

This manages to be both factually incorrect and completely off-topic.


our Constitution is a republican one, dedicated to securing the rights of all and authorizing our government to defend us against all enemies foreign and domestic

You are badly mistaken as to what a republican form of government consists of. It says nothing about ends and everything about means. A republican form of government is one where ultimate political power is said to reside in the citizens, who exercise that power by electing representatives to act in their stead. There is nothing in small r republicanism or the Constitution about government securing the rights of all. If anything the opposite is the case.

PS, Richard. Try using the "New Paragraph" button sometime.

Red and John, thank you for your comments.

Red, our disagreement is not over whether the Supreme Court is a co-equal branch of the federal government, thank goodness, but I should have made myself clearer about that "ultimate authority," which I followed with "on the meaning of the Constitution for all the states of this Union." Yes, the President and the Congress have the authority to make constitutional pronouncements which, like you, I wish they would make, instead of defaulting to the Supreme Court. What I was referring to was the relationship of the federal government to the states. In the course of litigation in cases in which the states are parties, the Supreme Court is the final arbiter. That does not deny that Congress may regulate the appellate jurisdiction of the Supreme Court, but that does not apply to cases in which the states are parties, which is within the Court's original jurisdiction.

You are free to call any relationship between the Constitution and the Declaration "Jaffaite nonsense" if you wish, but your real quarrel is with the founders, a number of whom helped draft both documents and all of whom knew that the concessions to slavery were a matter of necessity and not indifference. When a Republican Congress proposed the 13th and 14th amendments to the Constitution, it was the members' understanding that that document had been freed of its inner contradiction between the guarantee of liberty and the institution of slavery.

James Madison wrote in his Notes on the Federal Convention that the most serious quarrel there was not between the large and the small states, but betweeen the free north and the slave-holding south. All understood that slavery was inconsistent with republican principles of liberty and equal rights, and no less to government by consent of the governed. The Preamble to the Constitution is not mere rhetorical flourish but reflects the influence of the Declaration. The same for free elections.

Actually, Roe did not discover a right to privacy. That discovery was made several years earlier in a birth control case (Griswold v. Connecticut), with all that clap trap about penumbras and emanations. The true innovation of Roe was exactly as I said, which is that the unborn child is not a person. As to what previous generations had thought, it is sufficient to point to the fact that states had laws severely restricting the practice of abortion, and the inspiration for that was the 14th Amendment.

You are not wrong to say that the founders were concerned about demographics and political power insofar as they are affected by slave holding, but you admit that these were not the only reasons. There is a question of justice here, including both the wrong done to those enslaved and giving their masters more political power than they deserved. Southern delegates to the Federal Convention wanted to count all their slaves in the census, whereas northerners wanted them counted not at all. This "virtual representation" even in the 3/5s clause smacked more of rotten boroughs that government by consent.

John, you raise the same point as Red about the arbitration role of the Supreme Court, contending that its ultimate power is not in the Constitution. But when you place the supremacy clause alongside the first clause of Article III, Section 2, you find identical language: the Constitution, the laws and the treaties of the United States. That doesn't render Congress and the President powerless, but it does fix the Supreme Court as the final arbiter of the federal system, meaning the states are bound to follow the Constitution. The Court can make errors, and it can correct them itself, or Congress and the states can amend the Constitution.

In the course of litigation, the Court cannot avoid interpreting the Constitution, which is not the same thing as inventing doctrines or theories out of whole cloth, as I agree the Court (and Congress and the President!) has done. Defining terms is not forbidden to the Court, any more than to Congress or the President, or the state legislatures. There is nothing arbitrary about saying that a person is the offspring of human parents, which offspring is human from the moment of its conception. In Roe, the Court deliberately confused the issue by tiresome quotations from ancient and modern writers when all it had to do was to consult common sense, with which biological science is in full agreement.

Slavery is relevant to the current controversy over abortion because exactly the same approach was taken by the Supreme Court in Dred Scott and Roe: blacks are not persons, therefore they may be enslaved. Unborn children are not persons, therefore they may be killed.

You astonish me with your indifference to the ends which a republican government serves. What you are saying is that might makes right. But the majority has no inherent right to rule; rather that power arises from the recognition of the equal rights of all human beings to govern themselves, but who must form a government the better to secure those rights. Majority rule is a direct inference from equality, for rule by one or a few is incompatible with equality and each man's vote is equal to every other man's.

Thank you for alterting me to the New Paragraph function.

The Court can make errors, and it can correct them itself, or Congress and the states can amend the Constitution.

Nonsense. There is no way at present to correct errors made by the Supreme Court.


Defining terms is not forbidden to the Court, any more than to Congress or the President, or the state legislatures.

The court denies the authority of the other branches to define terms, while lacking any clear authority to do so itself. Otherwise Congress could simply define the start of life as it wished and we would not be having this discussion.

There is nothing arbitrary about saying that a person is the offspring of human parents, which offspring is human from the moment of its conception.


I never said that there was. I said that the courts do not have the authority under the constitution to say that the constitution means whatever they say. And following from that, the nine ninnies do not have the authority to tell 300 million Americans when life begins.

Slavery is relevant to the current controversy over abortion because exactly the same approach was taken by the Supreme Court in Dred Scott and Roe: blacks are not persons, therefore they may be enslaved. Unborn children are not persons, therefore they may be killed.

It is not the same thing, since the constitution clearly envisaged slavery. Slavery was not unconstitutional. By contrast, the constitution is silent on when life begins. Or ends.

You astonish me with your indifference to the ends which a republican government serves.

And you asthonish me with your indifference, even hostility, to the basic idea on which this country was founded - self government.

What you are saying is that might makes right.

No, Mr Illiterate. I am saying that in our system of government, all power flows from the people upwards, not from some unelected elite downwards.


But the majority has no inherent right to rule; rather that power arises from the recognition of the equal rights of all human beings to govern themselves, but who must form a government the better to secure those rights.

That is remarkably incoherent. You are saying that some consciousness outside of the people will sit in judgement on them, and determine whether or not they are abusing the power the possess. And if they abuse it, take it away from them.

And, by an amazing coincedence, that consciousness will be yours. But how exactly do you propose to strip the people of their power, even if you want to?

And on what grounds do YOU do what you condem in others and deprive people of their rights?

Majority rule is a direct inference from equality, for rule by one or a few is incompatible with equality and each man's vote is equal to every other man's.

People are not equal. The founders did not give the vote to all. Lincoln did not give the vote to all. Even today we do not give the vote to all.

And you are the one, with your wistful imagining of a totalitarian but benevolent Supreme Court, who would invalidate the votes of all but a tiny handful of people. Nine of them, in fact.

Okay, Richard Reeb(or anyone else willing to offer their explanation): If my post was a "caricature" and I'm slinging mud then perhaps you can answer:

Why are right-to-lifers obsessed with fertilized eggs to the extent of making that issue practically a litmus test for supporting a candidate, judge, etc?

Tom, if you're not smart enough to follow the discussions that are going on here, then don't try to comment on them. Really, you're bringing a knife to a gunfight here. A rubber knife.

Don't you acknowledge that it is correct time to get the loan, which will help you.

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