Strengthening Constitutional Self-Government

No Left Turns

More Gonzales v. Carhart

Robert T. Miller reflects on the infamous Auth cartoon. A snippet:

I can accept that arguments I think are right fail to carry the day in the public square. What I cannot accept—and what no one ought to accept—is that people with genuine arguments to make in the public square are dismissed as if they had none. This is just what Mr. Auth is doing: He is cutting off argument in order to advance his own view. He gets away with it, of course, because he also appeals to anti-Catholic prejudice, but once this sort of thing becomes socially acceptable in respected venues like national newspapers, the whole social function of the public square is imperiled. Militant know-nothingism, which is the psychological prerequisite to Mr. Auth’s style of argument, is an erratic force, and there is no telling where it might turn next.

If you want to read more, here are Rick Santorum, Ed Whelan, and Hadley Arkes. Here’s a bit from Arkes:

In the most curious way, then, a decision so narrow, so begrudging and limited, may invite a series of measures simple and unthreatening, but the kinds of measures that gather force with each move. We need to remind ourselves that we have seen such things before. We may recall, in that vein, the Emancipation Proclamation. It was limited, as a war measure. For Lincoln did not have the authority to strip people of what was then their lawful property in slaves. The Proclamation freed only those slaves held in areas that were in rebellion against the government. It did not cover the slaves held in Delaware, Maryland, Kentucky, Missouri. And yet ... it was understood instantly and widely in the country that this measure had an "anti-slavery impulse."

The decision on Wednesday, in Gonzales v. Carhart, was severely limited and diminished in its practical effects. But rightly or wrongly, there may be a sense that the decision opens the doors now; that it invites legislators and political men and women to deliver themselves from the reign of judges, and set their hands to this task once again.

Update: Rick Garnett has more.

Update #2: The Federalist Society is offering an on-line debate, which, in typical Federalist fashion, features prominent advocates on both sides of the issue (how novel!). If you want to read what Douglas Kmiec, Erwin Chemerinsky, Randy Barnett, and Wendy Long have to say, visit the site.

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