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Hackery, Thy Name Is Michael Barone


Michael Barone essays some constitutional “analysis,” which is touted by various wingers* who also don’t know anything about constitutional law, except that the framers intended the Constitution to enact the 2008 platform of the Texas Republican Party.     And it’s even worse than this setup suggests:

I would expect an Obama nominee to decline to answer. But Republicans may not take such a response as meekly as they did when Ginsberg [sic] declined to answer dozens of questions back in 1993. They might press harder, as they did in 2009 when they prompted Sotomayor to declare, to the dismay of some liberal law professors, that she would only interpret the Constitution and the law, not make new law. Just raising the health care mandate issue helps Republicans given the great and apparently growing unpopularity of the Democrats’ legislation.

Republican Senators were able to force Sonia Sotomayor to mouth some of the same vacuous tautologies as Samuel Alito and John Roberts. Victory! Uncited: the “liberal law professors” who were allegedly dismayed because Sotomayor said she would “interpret the Constitution.”

But we’re getting to the really dumb stuff:

Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. “How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?” asks former New York Lt. Gov. Betsy McCaughey in The Wall Street Journal. “Either your body is protected from government interference or it’s not.”

Generally, it’s a bad idea to rely on the unfounded assertions of one of the most relentless liars in American public life, and this is no exception. First of all, nothing in Griswold and Roe suggests an absolutely unlimited right to do anything involving one’s body. But this is beside the point, of course, because nothing in the health care bill prevents anyone from getting a hip replacement or Caserean section if they choose to obtain one and can find a willing provider. But yes, asking the next Supreme Court nominee about the contradiction between a non-existent constitutional right first adduced in the landmark opinion My Fevered Imagination v. Strawman and a non-existent legislative provision sure will make the nominee look stupid and uncomfortable. I hope Jeff Sessions takes the bait.

McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn’t set standards for doctors to administer lethal drugs to terminally ill patients under Oregon’s death with dignity act. So does the Constitution empower the feds to regulate non-lethal drugs in contravention of other state laws?

McCaughey seems never to tell the truth, even by accident. If (unlike, one suspects, Barone) you actually read the Court’s holding, you’ll see that it’s a statutory interpretation case, not a constitutional case: the Court didn’t say that the federal government couldn’t preempt state laws concerning lethal drugs, it said that it didn’t give the Attorney General that authority.   Absolutely nothing in the Court’s opinion suggests that Congress couldn’t give the Attorney General that power if it chose to do so, and it is clear from a ruling issued the year before case that such a law would be upheld.

That’s an impressive day’s hackery!

*As a commenter notes, the “winger” label does not seem fair as applied to Zandar — he seems to be more of a centrist type .   My apologies.

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