Strengthening Constitutional Self-Government

No Left Turns

Why I Hate Constitutional Law

Well, here it is: Too much depends on arguments based on bad precedents. Given PLANNED PARENTHOOD v. CASEY, I can’t see why repugnance of some kind can be used to deny a woman’s "liberty" or right to the most safe or healthy imaginable abortion given her circumstances at any time prior to "viability." Given PLANNED PARENTHOOD, I think Ginsburg is right and Kennedy is wrong. But I also think that PLANNED PARENTHOOD is a fairly bizarre, judicially arrogant, and borderline nihilistic interpretation of the Constitution that doesn’t deserve to stand--one, for example, based on the candid admission that even if the essential holding of ROE was a cosntitutional error it must be reaffirmed to sustain the Court’s self-appointed power to end decisively national controversies. Kennedy is open to the criticism that his repugnance/respecting-the-value-of-life is imposing some Catholic sensibility on the Constitution, and he is sincerely engaged in a mission impossible in trying to reconcile his moral sense with the liberty asserted in PLANNED PARENTHOOD. On the other hand, Scalia’s core position that the Constitution neither commands nor precludes the states’ protecting fetal life isn’t particularly Catholic at all, and that position is the foundation of the moral argument our country really needs to have over abortion, as unpleasant as it might be. The continuing controversy over abortion and the resulting politicization of everything surrounding our judiciary is evidence that the Court should get out of the abortion business. And when that finally happens and the properly moral/political argument comes, we would do well not to depend on visceral repugance but on sober and truthful reflection on what kind of being the fetus/baby is.

Discussions - 5 Comments


I think you're right that everything Kennedy does is ultimately "legislative," but Gonzales v. Carhart is appropriate, given his (mistaken) assumption that these "judgment calls" about compelling state interests and least restrictive means to accomplish them (how safe is safe enough?) belong to courts rather than legislatures.

You're right that we have to move eventually from repugnance to reason, but this decision may be a first step, if the Democrats and their pro-choice supporters are going to make an issue of this in 2008.

Dittos all around, Peter. That is, in a way, the point I was trying to make below. But this repugnance is good because it shows us that our moral sense is not yet dead. It is a first step on the road to reason. But reason must and will move beyond it.

We need both. We need to avail ourselves of the moral repugnance that attends this procedure. AND we need to use our reason to sway the public on this issue and many an issue like it. It's not one or the other, it's both. And both must be wielded deftly, and their use should be appropriate for their audience. Just because you"re broaching the subject with something of an intellectual crowd doesn't necessarily mean that reason should be solely used. I think it's the intellectual elites of this country that have clearly lost a sense of what we're talking about. They've become jaded. And they need to be shaken up, big time. And partial birth abortion is a perfect instrument at hand. The details of that procedure are horrific. Absolutely horrific. And the horror of the procedure strengthens the moral, legal and cultural argument against that procedure, and what's more, strengthens the argument against all abortions.

"Well, here it is: Too much depends on arguments based on bad precedents."

It doesn't have to be that way. Good constitutional interpretation should try to determine what was the original intent. Precedents are one thing to consider, (what others have thought on the subject) but they should not be binding if they are clearly in error. What some judge in the 1970s though on a subject is much less important than what Madison et al thought.

Also, we should allow our "visceral repugnance" to teach us. It is too much resorting to reason that has lead us from our natural "visceral repugnance" at the thought of a mother killing her child, to a purely pontificated "right to chose."

Julie, this is also why this argument should not be based on equality. If we allow ourselves to get into a battle with liberals over "equality" we will not win. This is primarily an argument about expected behavior - taking care of your progeny, and proscribed behavior - not killing them. Expected and proscribed behaviors are the conservative playing field, and liberals know it. They are more than happy for the debate to continue at the level of rights, equality, and reason (as the term is being used here), because that inherently advantages them.

I'm not a lawyer but I think I like to think that I am a logical individual. So this post is as much a question as an offering of my opinion.

Roe was a mistake. It was a mistake about 'The Zone of Privacy'. Everything else is fluff. If there is no such zone then everything that flows from the affirmation of this decision is garbage law. That something is a 'divisive national crises' is not material. Look around, division is everywhere. You can not act today without worrying if someone might be offended. So supporting Roe because it ends or minimises division is nuts.
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