Strengthening Constitutional Self-Government

No Left Turns

Taranto on Giuliani and ROE

Here are some informed comments on why ROE may well be overturned and how the pro-choice Giuliani’s appointments might, ironically, contribute to that result. I still say that we need or could use a president who could actually explain to the American people why ROE was wrongly decided. I can add that it’s probably better to win with Rudy tha lose with a candidate that can made that case. But my point is that the case itself isn’t weak from either an electoral or a constitutional point of view.

Discussions - 21 Comments

Is it not possible to say that you think Roe was wrongly decided, that you are personally pro-life, but that given the chance to make a decision about whether abortion should be legal you tend to think that it should? What I’m getting at, I think, is essentially Rudy’s position--or am I wrong? I actually don’t know what Rudy thinks about the constitutional law in Roe. He may think it is fine--but that isn’t necessarily the case just because he thinks abortion should be legal. That could only mean that he would vote for it to be legal if given the choice. Of course, because of Roe we are not given the choice. If anyone does know for sure what Rudy thinks about Roe and can provide a link to demonstrate it, please do. What I do know is that he has said that he is against abortion in principle (or personally) but thinks it should probably be legal. That, in itself, does not mean that he thinks Roe was rightly decided. If Rudy is not a fan of Roe or if he is ambivalent about it, exploring this proposition of Peter’s would be a very smart thing to do, it seems to me. I would not be a person to vote for the legalization of abortion if we had that option, but I think the case against Roe is sometimes better made by people who would--if only because it forces the mind to think in ways it is unaccustomed to think about this old and tired issue.

We’re in a war Peter. The war comes foremost. The time that you would have the President spell out the ramifications of Roe, must be spent spelling out the nature of the war, the character of our enemy, the ramifications of withdraw and defeat.

We have to prioritize.

What we should demand is that whoever gets the nominee, that he only hire originalist lawyers.

And one thing more. It’s NOT a matter of reasoning anymore. Roe was never really about that. Roe came during the sexual revolution. It was ALWAYS a fashion statement. It was always iconoclastic, just like forcing women into the service academies.

Read the Casey ruling. O’Connor CONCEDES the point. She concedes that Roe should have been handled differently, but then goes on to say that our society MUST have abortion. Read the thing. Scalia tears the ruling to shreds.

But it’s made no indentation really. For it was never about logic.

The abortion edifice is crumbling though. Those sonogram pictures are armour piercing. And Europe’s hand is being forced on the matter. That demographic time bomb tolls the final hours of abortionism.

Thank God too!

This analysis is exactly correct, though it would be even better to have seven votes! The point is to have time for the truth to sink in through state action that abortion will still be generally available but regulated, so that the pressure on a subsequent Court would recede. I agree with Peter that Roe is more likely to be overturned than not, and add that someone like RG would be better able to get away with it, though who can be sure.

Could we just maybe stop the Rudy crap. He isn’t going to make it--it’s as easy as reading a book to see the signs that are going to tank him.

Utube of Rudy


George Will: "Do you think Roe was good constitutional law?"

Giuliani: "Yes"

Clint, to what books/polls/articles are you refering? I’m honestly curious. Here’s a great site on the GOP candidates:

For Clint’s sake, Giuliani aside, I think the link from the article Peter linked to the "Roe Effect" article is even more interesting. It seems Roe may truly be heading towards its last days, as the pro-life voters have more children at an earlier age than pro-choice voters (and children tend to gravitate towards their parents’ opinions). Also reassuring is the brief mention of increasingly better prenatal care "which make nonsense of the idea that a fetus is ’just a clump of cells’". It looks like the populace may simply out reproduce the fanatically pro-choice elements in society. Good stuff.

The head in the sand attitude of so many on the right with regard to Giuliani is simply bizarre. Although in certain cases, such as the WSJ and WS, the people in question are clearly interested in moving the party to the left.

John - It had not occurred to me that the WSJ seeks to move the Republican Party to the left! I guess you mean move it in a less "socially conservative" direction. We again see the problems with left-right in a party (any party) containing views falling along more than one dimension.


Are you under the impression that the WSJ seeks to move the country in a more fiscally conservative direction? You are mistaken if so. Their preferred future for America is for a more European style social welfare state.

You are almost right about the number of different vectors in politics, but you left out the fact that one vector is the centralising/decentralising one. On that vector the WSJ, like the establishment right in general, favors the more left wing approach.

I think the article is wishful thinking. It starts with the assumption that Roberts and Alito will vote to overturn Roe. Even assuming that is correct, it still does not provide the neccessary votes. A democratic president woild certainly appoint justices who would keep Roe. The track record of GOP presidents, even ones who are against Roe, is about 50/50.

Bottom line, it is unlikely that Roe will be going away any time soon.

John: Thanks for the link. That was pretty unequivocal. Too bad. He might have carved out some new ground here and actually advanced the debate if he had conceded that the legal reasoning in Roe is bad. Though Dan makes a good point, I think, in arguing that support for Roe is rather more like a fashion statement than a thought. It might be beyond logic in some quarters--but I wouldn’t be so ready to swallow that thought entirely. I think there are sufficient numbers of young voters now who have no historical memory of the sexual revolution and, therefore, no emotional investment in preserving its relics. These people are likely starved for logic and tired of the same old rehashing of the 60s & 70s that characterizes most discussion of this issue. That’s why I suggested that a strong statement against the logic of Roe coming from someone who is not known to be pro-life might be just the thing here. It would be sufficiently different to be jolting and thought-provoking. Too bad it seems that Rudy is not the guy for this job.

Thanks for the link. I’m going to post it to get more responses.

Re Andrew: Here’s a good article out on Rudy and why he won’t be winning. I totally understand that he is ahead now, but trust me, he isn’t going to last. He’s a bad speaker, a petty fighter, and his personal life has his opponents salivating. A couple mailers in Iowa about his divorce and shacking up with some gay guys and its hasta la vista.

John--nicely done on the Rudy link; I’m sick of NLT pretending Rudy is a conservative too.

It’s unclear exactly when he said the things in that clip (a montage of clips actually), though from appearences I’d guess they are from the late 90’s through 2000 and his aborted Senate run. He is free to change his mind on the issues, as anyone else is. But there is no getting around the fact that at one time (to be nice about it) he was pretty much a liberal on a wide range of issues.

Peter wrote: "I still say that we need or could use a president who could actually explain to the American people why ROE was wrongly decided."

I’m not being flippant or sarcastic here ... but you have 20 seconds (about the attention span of the average American). Explain why ROE was wrongly decided. Don’t use legal jargon because I don’t understand that and will turn my ears off after the first or second big legal term. Go.

Don: Fair challenge. I’ll bite. "Our founding Fathers, in the Declaration and Constitution recognized - did not *grant*, but *recognized* - every citizen’s right to life, liberty and the pursuit of happiness. My administration, in renewed solidarity with our nation’s founders, decries the loss of that recognition and the legal protection of our most innocent, defenseless citizens. Nature, and nature’s God, is on our side. Science is on our side. Common decency is on our side. And the law of the land must return to that national understanding - ever ancient and ever new - of those protections."


I hope that you did your reading for tonight.

A Nony Mouse

Gary, Noble and all that, but that’s not the way to go. You have to explain why the Court exceeded its constitutional authority and nothing more, for now.

Did the Founders ever claim that the unborn were "citizens"? If an illegal immigrant in the United States has a child while here, there are many around here who would deny that the child should receive citizenship. On what basis can that child be denied it, but the unborn child of an American citizen be assumed to have it? Is citizenship carried in the sperm of the father?

The unborn is a full human being.

Sperm, on the hand, aren’t.

Okay, fine, but Gary claims that the constitutional (as opposed to the strictly moral) objection to abortion is this:

Our founding Fathers, in the Declaration and Constitution recognized - did not *grant*, but *recognized* - every citizen’s right to life, liberty and the pursuit of happiness

One can certainly be a human being without being a citizen, and if it is citizens only who are protected by the Constitution (the argument made by many conservatives who aren’t bothered by what’s been going on at Guantanamo Bay), then I wonder whether we really can call Roe unconstitutional.

Of course, I might add that the Declaration says nothing at all about "citizens"--it says that all human beings possess inalienable rights. But then there’s that Guantanamo Bay thing again....

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