Thursday, August 16, 2018

Out of the ether

The Supreme Court's 1973 Roe v Wade decision overturned every state law outlawing or limiting abortion. Madison, Wisconsin's current Isthmus includes "The crazy uncle in the attic" by a "pro-choice" supporter on that decision. He, Michael Cummins, on Roe:
.... The framers of the Constitution went to great pains to enumerate lists of both federal powers (Article I, Sec. 8) and protected rights (the Bill of Rights). Roe is the culmination of a Supreme Court habit, developed in the middle of the last century, of treating certain parts of the Constitution as catchalls for unenumerated powers and rights. Griswold v. Connecticut (1965), for example, discovered a right to use contraception within an enforceable “zone of privacy” in the “penumbras“ emanating from the enumerated Bill of Rights. In concurring opinions, a couple of the Griswold justices located the right instead in the Due Process Clause of the 14th Amendment: “No state shall…deprive any person of life, liberty, or property, without due process of law.” (See it? Me neither.)

The opinion portion of Roe consists, in a nutshell, of a detailed world history of abortion back to ancient times (provided for reasons unclear), a few approving citations of Griswold and similar cases, and then a declaration that first-trimester abortion is within the supposed zone of privacy. As Harvard law professor Laurence Tribe puts it, “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Roe’s deficiencies are an open secret among America’s liberal intelligentsia. Even legal scholars who enthusiastically embrace the concept of a flexible Constitution seem to regard it, among the family of groundbreaking mid-century Court decisions, as the crazy uncle in the attic. University of Pennsylvania law professor Kermit Roosevelt writes, “you will be hard-pressed to find a constitutional law professor…who will embrace the opinion itself rather than the result. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.” ....

As pro-choice Brookings Institution senior fellow Benjamin Wittes points out, “lots of fundamental rights are protected by legal authorities other than the Constitution. For instance, the right not to be fired by a private employer because of one’s race or religion is statutory, not constitutional.”

Indeed, most of our rights are cognizable only at the statutory level. Adults, for example, have the statutory right to move about freely in their cars, so long as they comply with certain requirements. Our elected representatives maintain statutes that support that right because it is popularly recognized as such. The Constitution has nothing to do with it.

To be sure, some set of rights should be protected from majority rule. Instead of being limited to the Constitution’s enumerated rights, Roe asserts that the set of protected rights is open-ended, and that its expansion is the prerogative of the Court. Had the framers thought through the protocols of judicial review, they would certainly have rejected the unlimited power this implies.

We should reject it, too. ....
If Roe were ever overturned by the Supreme Court the legality of abortion and the extent of its legality would once again be up to state courts and legislators as it always had been before Blackmun's incoherent opinion in 1973.

The crazy uncle in the attic - Isthmus | Madison, Wisconsin

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