Finally the New York Times adds a strong (self-described) feminist voice to its op-ed pages:
Similarly, Giuliani respects the distinctive work of judges and the separate role of the state legislatures. If Roe were overruled, those legislatures would decide how to regulate abortion. And decentralized legislation really is fairly called “part of our freedom” because the Constitution’s framers saw the balance of power between the national government and the states as a safeguard against tyranny.
Ah, yes, nothing would enhance our freedom like the ability of state legislatures to violate people’s fundamental rights–just ask George Wallace! Anyway, there are some obvious problems here:
- The Madisionian “double security” argument is at least plausible if you’re defending a narrower construction of federal legislative powers, but when (as with abortion) it’s a question of individual rights versus state power, to claim that expanding the power of the state–in this case, to force women (not in Ann Althouse’s economic bracket, so who cares?) to carry pregnancies to term–enhances freedom is Orwellian. Perhaps the increase in state power is desirable, but it’s absurd to claim that it’s a net increase in freedom for American women.
- But, of course, the argument is even worse because the idea that overturning Roe would return the issue to the states is transparent nonsense. If Althouse gets her wish and Giuliani (or any other Republican) is able to appoint enough justices to completely gut or overrule Roe, abortion will be a federal as well as a state issue, and Congress can and will pass abortion regulations (indeed, this term Althouse’s beloved Justice Alito is almost certainly going to vote to uphold a particularly irrational federal abortion law.)
- And most farcical of all is Althouse’s claim that Giuliani’s pledge to appoint judges that are (to use a term that is essentially meaningless in the context of constitutional interpretation) “strict constructionists” is a signal that he won’t “populate the judiciary with politicos.” As William Rehnquist said in an admirable moment of candor, “A judge who is a “strict constructionist” in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court’s “broad constructionist” reading of the Constitution.” Anybody who thinks that Republican presidents that appoint alleged “strict constructionists” aren’t seeking some particular political outcomes would lend their credit cards and house keys to someone they just met through a Craig’s List personal.
Why oh why can’t we have better guest columnists?
…oh, and one more thing to add. In light of Althouse’s alleged commitment to the Sacred Principles of Federalism and purported opposition to “politicos” on the Supreme Court, you may wonder what she thinks about Bush v. Gore, in which 1)a ludicrously insubstantial federal constitutional question was used to override a state court interpretation of state law, 2)the Court not only declared that the ad hoc federal principle was inapplicable in future cases but failed to apply it logically in the case itself, and 3)all of this had the result of putting the favored candidate of the Court’s bare majority in the White House. Needless to say, she supports it.
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