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Giving away the show


Another of the American Conservative articles is an endorsement of the Constitution (sic) Party’s candidate by founder Howard Phillips. One advantage of supporting a no-hope candidate is the potential for candor, and what Phillips has to say about judicial appointments and abortion is refreshing in this respect:

Some say the reason they plan to vote for Bush is judicial appointments. But that argument lost its validity when President Bush intervened to prevent the nomination of Congressman Pat Toomey over pro-abortion Sen. Arlen Specter in the recent Pennsylvania Republican Senate primary. If Senator Specter is re-elected on Nov. 2 and the GOP holds its majority in the U.S. Senate, Specter will become chairman of the Senate Judiciary Committee, situated to act in collaboration with his liberal Democrat soul mates to prevent the confirmation of pro-life judicial nomineesand positioned to argue to Bush, if he is re-elected, against the appointment of judges who are comprehensively opposed to abortion. For these reasons and others, it is specious to vote for George W. Bush on the basis of supposed advantages for our side with respect to judicial confirmations.
As president, Michael Peroutka would…appoint only judges who are 100 percent against abortion.

Whoops! You see, opposition to Roe is generally framed as being an attack on bad constitutional law (even though many of the people making this argument do not actually know anything about constitutional law.) And, in fact, Roe was not a well-crafted decision. It is unfortunate that (with the exception of Chief Justice Burger on both counts) the most conservative and least intellectually accomplished member of the majority coalition was given the opinion. And many more persuasive defenses of the (correct) outcome in Roe have been offered, starting with William O. Douglas’s concurrence in Roe‘s companion caseDoe v. Bolton, which demonstrated that reproductive freedom was a logical application of a long line of relatively uncontested precedents and points out that existing abortion statutes were overbroad if protecting fetal life was their primary concern. While armchair constitutional scholars complain that there is no “right to abortion” in those words in the Constitution, the notion that there are no implicit rights in the Constitution is laughable, and openly contradicted by dozens of cases. The doctrine that there are substantive rights implied by the structure of the Constitution and the due process clauses of the 5th and 14th Amendments is one that virtually every jurist in the United States–including Rehnquist, Thomas, and Scalia–supports. The only question is whether the reproductive rights identified in Roe are among them, and given the discretion involved, reasonable people can disagree on that point. But the idea that Roe is somehow different in kind from other constitutional jurisprudence is just demonstrably false. It was a 7-2 decision and a predictable application of a line of cases enthusiastically supported by the era’s greatest conservative jurist, the second John Marshall Harlan.

But, of course, the weak craftsmanship of the majority opinion in Roe is entirely beside the point, as Phillips is honest enough to admit. Opposition to Roe, outside of some politically irrelevant discussions in law reviews, is about abortion policy. No argument could be well-crafted enough to convince people who strongly opposed abortion that Roe was correctly decided. Most people who bitterly oppose Roehave no objection to Bush v. Gore, which makes Roe look like an eternal masterpiece of legal scholarship and reasoning, or the recent line of “sovereign immunity” cases, which started in a decision (Seminole Tribe v. Florida) that reads as if William “Don’t worry so much about the reasoning” Rehnquist tossed it off on the limo ride into the office one morning. Phillips, at least, has the honesty to admit the obvious: almost all political opposition to Roe is based on opposition to abortion rights, not on abstract debates about constitutional law.

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