It has long been assumed that if Roe v. Wade were overturned, we would be faced with a state-by-state legislative battle over abortion regulations. But many Roe opponents seem to have their eye on a bigger prize: that abortion should be a federal crime.
Those who believe that are now in power. And if Roe v. Wade is overturned, it plausibly could happen, given how Bush conservatives have "grown" in their understanding of the Commerce Clause in the United States Constitution, Article I Section 8.
Glenn has many times argued that Bushism is not reasonably considered coterminous with any heretofore known strand of conservatism, and among the areas in which this assessment is proven true is in the positions taken by the Bush Department of Justice, as well as by at least one of their "conservative" allies on the Supreme Court, Antonin Scalia. These legal positions directly implicate states rights, federalism (the principle that all powers not vested in Congress in Article I are reserved to the states) and the Commerce Clause, and they do not yield historically "conservative" outcomes, not unless the "right" result is all that matters to Bush conservatives.
Historically, conservatives and libertarians have decried and repudiated the High Court's 1942 ruling in Wickard v. Filburn -- a decision holding that a farmer cannot grow wheat in his own state, on his own land, for his own consumption, if a New Deal Congress legislates otherwise. They have insisted that the Wickard Court expanded the Commerce Clause -- which vests authority in Congress to regulate interstate commerce -- such that it now eviscerates federalism.
Conservatives have warned that Congress is now dangerously free to legislate in any intrastate area it wishes, with virtually no facet of life or law reserved for the exclusive law-making province of the several states. Indeed, many have argued that this expansive understanding of the Commerce Clause fundamentally subverts the political order bequeathed to us by the Founders, and Robert Bork, among others, has sought to pull the courts back from this error; it has been standard conservative conventional (and in my view, correct) wisdom that this was a crucial thing to accomplish. But Bush "conservatives" are in full retreat from a desire to rein in the Commerce Clause, as recent history shows. And it matters.
A few months ago, the Supreme Court in the case of Gonzalez v. Oregon, ruled that the citizens of Oregon were entitled to permit physicians within their borders to prescribe fatal doses of narcotics to terminally ill patients who wished to exercise the option. The only reason that the right of Oregonians to pass such a law was in legal dispute, is because then-Attorney General John Ashcroft decided -- in the immediate months after 9/11, when he apparently had little else to do -- that it was urgent to "interpret" The Controlled Substances Act ("CSA") as prohibiting Oregon's preference in the matter. The federal government's over-bearing intrusion into such anguished, individual end-of-life decisions failed, in a majority Opinion written by Justice Anthony Kennedy , but not for want of trying by Justice Scalia, who dissented.
Scalia's position is simply astonishing, on multiple levels (my emphasis):
The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality–for example, by banning the interstate shipment oflottery tickets, or the interstate transport of women for immoral purposes.
Got that? Interstate transport. Scalia completely overlooked -- because he needed to in order to reach his preferred result regarding "public morality" -- that Oregon was not exporting its physician-assisted suicide program; it is an intrastate matter, and as such should not, by any conservative understanding of the scope of the Commerce Clause, be within the reach of Congress, the CSA, or the DoJ. Scalia is chanelling Wickard, but won't admit it.
How do the Bush supporters at National Review Online parse Scalia's dissent? Well, long-time contributor Hadley Arkes opens by violating Godwin's Law (I'm not quoting that putrid nonsense, click the link if you wish to read it), and he is having none of the idea that the Commerce Clause is in any tension with that federalism thing, not at all (and he thinks any who disagree with him are libertarians, but there certainly are others):
The libertarians are headed on a path of incoherence if they think that federalism offers a way to put aside the moral questions that vex our politics. The scheme offered to us in the Oregon decision asks us, in the name of federalism, to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine.
Arkes, however, is logically correct about this: But the problem here is taken into another register as soon as we have found compelling reasons for regarding the regulation of drugs as a scheme that must have a national, or federal, sweep. Once we have made that judgment, the question of regulating drugs simply cannot be detached from the question of what is a legitimate or illegitimate use of drugs. And that in turn cannot be separated from the question of the rightful and wrongful ends of medicine.
Well, if Scalia and Arkes are correct that the federal government may properly and constitutionally regulate interstate commerce, for the purpose of "protecting" intrastate public morality, then why not criminalize abortion in all 50 states? If it is the case that conservative principles and federalism allow Congress to legislate regarding the "moral questions that vex our politics, " then why should not a pro-life, GOP Congress ban abortion nationwide?
And, not surprisingly, that is exactly how a GOP Congress and Bush's DoJ see things. As Jacob Sullum, Senior Editor at Reason, elaborates regarding the Partial Birth Abortion Ban Act currently under review by the Supreme Court, and defended by the Bush DoJ (my emphasis):
If it's hard to locate a right to abortion in the Constitution, it is no less difficult to find congressional authority to regulate abortion. The Partial Birth Abortion Ban Act seeks to do so under the laughable pretext that every abortion is part of interstate commerce.
Abortion rights supporters may have invited this sort of legislation by federalizing the abortion issue and pushing a limitless reading of the power to regulate interstate commerce. But it's conservatives who have responded by sacrificing their own principles.
Thus, if Roe v. Wade and its progeny are overturned, conservatives may very well push for a reverse-Roe, in which Congress could criminalize abortion everywhere in the nation. Certainly, I did not previously think the Supreme Court would possibly uphold such a pernicious federal law.
I strongly suspect that Sam Alito would balk at such a notion. But the more-acceptable-to-liberals John Roberts might well sign on (along with Scalia) -- and in a reverse of concerns around the blogosphere, I was more unhappy with his nomination, precisely because I thought he would be so receptive to a distorted, and wildly expanded, Commerce Clause, enabling all sorts of legislation to be federalized by the Congress. The salient point is, however, that if the Congress and Bush's DoJ insist that Congress may legislate about one particular abortion procedure (PBA's), what constitutional principle is left to prevent that body's banning abortion in total?
With Bush "conservatism" in ascendancy, the old jurisprudential complaints are discarded, and federalism is a quaint -- perhaps liberal! -- proposition now; all is now possible and permitted in the expansive and expanding Executive and Legislative branches of the Bush GOP. And if you think I'm overstating things, that a Bush (and "I-can-diagnose-Terri-Schiavo-by-4- minute-video-even-though-I'm not-a-neurologist" Frist) GOP Congress would never breach principles of federalism and reach into family matters of life and death reserved to the states in any breathtakingly egregious manner, well, check with Michael Schiavo.
i may be wrong about this, but wasn't bush's selection by the supremes in 2000 a breach of federalism as traditionally understood?
ReplyDeletehas the GOP performed a principled action at any point in the bush presidency?
it shouldn't be a surprise, at this late date, that they are mercenary. what would be genuinely stunning is if they displayed some integrity.
Good post, Hypatia. Glenn has documented many of the beliefs which conservatives ditched soon as they got into power. Fedearlism was one of the first to go.
ReplyDeleteAnd anyone who thinks they would allow abortion be decided state by state,rather than imposing a federal ban, must have been in a cave the las five years. Anyone think Jim Dobson cares about federalism? Didn't think so.
MichaelGalien,
ReplyDeleteYou're right in your confusion over the interstate commerce clause. The problem is that it has gotten so weak over the years as to be almost meaningless (meaning that the federal government can simply declare something to affect interstate commerce and it does by definition).
The last nail in the coffin was Gonzales v. Raich, which held that the federal government could arrest medical marijuana users in California, even though they had grown their own marijuana completely within the state, and under the full approval of their local and state governments. To call that interstate commerce requires logic gymnastics of the highest order.
Unfortunately, liberals became so enamored with weakening the commerce clause for noble efforts like ending discrimination, etc., that they refused to consider any limits. All that it took then was for conservatives to get power and immediately drop their previous interest in states rights.
Under the current Supreme Court rule, federalized abortion prohibition is easy.
It's also important to note that Oregon was less of a commerce clause issue, as it was more a specific interpretation by a member of the administration (Ashcroft) than a law by Congress. Many feel that if Congress had passed a law forbidding assisted suicide, that the Supremes would have upheld it.
Alicia writes: And anyone who thinks they would allow abortion be decided state by state,rather than imposing a federal ban, must have been in a cave the las five years. Anyone think Jim Dobson cares about federalism? Didn't think so.
ReplyDeleteIn my view, it was a huge catastrophe when abortion rights advocates pushed for Roe, and placed the issue in the federal courts, and Congress then began legislating on the issue as well, such as with the Hyde Amendment restricting Medicare abortions. Among other things, Roe galvanized religous voters, pulling many out of the Democratic party where they had traditionally been.
Around the abortion issue, the religious right as a political force was, as it were, given birth. My mother, a devout Catholic, became quite the political activist as a result of Roe and worked hard to elect mostly GOP, pro-life politicians. There were and are legions like her, and they are organized and in place now to obstruct progress for gay people, too.
But its a done deal, and abortion is federalized. Conservatives have long insisted that it ought not be, and that they seek only to have the issue returned to the states, which actually would be fine by me. It is just that I am certain many of them no longer really believe in federalism, if they ever did. (And many really still do -- you can see conservative law prof Stephen Bainbridge was not happy with Scalias's dissent and rationale in the Oregon assisted suicide case here)
Pete Guithier writes: The last nail in the coffin was Gonzales v. Raich, which held that the federal government could arrest medical marijuana users in California, even though they had grown their own marijuana completely within the state, and under the full approval of their local and state governments. To call that interstate commerce requires logic gymnastics of the highest order.
ReplyDeleteUnfortunately, liberals became so enamored with weakening the commerce clause for noble efforts like ending discrimination, etc., that they refused to consider any limits. All that it took then was for conservatives to get power and immediately drop their previous interest in states rights.
Under the current Supreme Court rule, federalized abortion prohibition is easy.
It's also important to note that Oregon was less of a commerce clause issue, as it was more a specific interpretation by a member of the administration (Ashcroft) than a law by Congress. Many feel that if Congress had passed a law forbidding assisted suicide, that the Supremes would have upheld it.
All good points. Raich is an abomination, and liberal as well as conservative justices voted in the majority on that, with the outstanding exception of Clarence Thomas. And while you are correct that the Oregon case implicated statutory interpretation, the Commerce Clause and federalism were also the underlying issues there as well. As Thomas noted (with manifest frustration) in his "dissent" to that case, Raich was only 7 months old, and it was impossible to understand how under any robust principles of stare decisis, the High Court's abandonment of federalism in that case should not also fell the Oregon law. (Thomas did not truly dissent in the Oregon case; he hated the holding in Raich, and was simply decrying a lack of jurisprudential consistency and discipline.)
The camel's nose in all this is the CSA, and federal drug prohibition. And for that one can blame Democrats and Republicans, liberals and conservatives alike. Congress has no constitutional warrant to dictate what substances shall be legal in the several states for what reasons, any more than it does to dictate abortion law. But there are now no principles of federalism left in place to stop Congress, if it were also to legislate in the area of abortion.
Hypatia- Well this is SOOooo KOOL!
ReplyDeleteFirst a welcome to the Bloggie World!
(And it is as *addictive* as Glenn says!!! *wink*)
But it is great that we get to have some additional voices and commentary on these important issues and don't have to go cold-turkey while Glenn is bizee on other matters.
And as to the State's rights v Federalism flip-flop by the conservatives...is more proof of the bankruptcy of their self-proclaimed *Guiding Conservative Principle* (along with Smaller government, Fiscal responsibility, No-Activist Judges, etc. etc.).
They have become a purely "outcome" driven machine that is determined to WIN by any means necessary and they will never STOP. (Demonstrating yet again the *truth* in my Terminator- Theory of Conservative Government! *snark*)
Looking for more good things from you and Anonymous Liberal in the days and weeks ahead!
:-D
I don't think there is any doubt that a federal abortion ban would fall under the commerce clause. i actually think that's a good thing in the sense that i fully support a broad reading of the commerce clause and think the Morrison/Lopez decisions trying to limit the commerce clause are terrible.
ReplyDeletewe shouldn't be inconsistent: we oppose a federal ban on abortion, but not for federalism reasons. generally speaking, a broad commerce clause is good and allows all sorts of things we like, i.e. environmental laws, Social Security, etc.
that said, the common wisdom that "overturning Roe v Wade would leave abortion law to the states" needs to be dispelled. that is just false.
Hypatia is correct in her assessment that Alito is more likely than Roberts to resist the notion that the Commerce Clause allows the federal government to outlaw abortions.
ReplyDeleteBut there's a reason why federal laws protecting abortion are constitutional, and laws limiting or outlawing them are not. At least under the theory espoused by Roe and upheld ever since, forbidding a woman to have an abortion interferes with her constitutional right to privacy.
However, if the Bushists get a chance to place one more judge on the bench, I believe the push we will see will not be for an expansion of the Commerce Clause to include intrastate abortions. The assault will be more direct: get the Supreme Court to rule that a fertilized egg is a person. At that point, the Commerce Clause becomes irrelevant. Any woman who takes a morning after pill will be violating the federally protected civil rights of a person.
Can anyone doubt that both Roberts and Alito would jump joyfully with both feet onto that bandwagon?
Good post, hypatia. And you have good arguments on your side about Roe being a longterm setback for abortion rights. Scalia has a lot of cheek sneaking in drug prohibition as a traditional power of the feds. Only a few short decades before the wave of idiotic federal drug prohibition laws, it was deemed necessary to have a constitutional amendment to prohibit a drug. Incidentally, a lot of the conservative court's opinions read as if they have access to some stuff which is a lot stronger than anything from Colombia - Bush v. Gore (although Kennedy was careful to phrase the per curiam in such a way as to leave it technically overrulable by the Florida court, it was of course a flagrant assault on federalism) and its martian 11th amendment jurisprudence.
ReplyDeleteSnacktime, I'm all for a commerce clause broad enough to cover environmental laws and social security. The biggest problems facing the human race are environmental - global warming - and a constitution that would not allow environmental laws would be a suicide pact. A clause so crazily broad as to be meaningless is another thing.
I was thinking some time back of writing a satire about the chaos that would result if the Supreme Court decided a fertilized egg equaled a human.
ReplyDeleteEvery woman who has a stillbirth or a miscarriage prosecuted for accidental manslaughter?
Put that together with our legislative society, a bunch of really nasty divorces and I predict accusations of accidental (or not so accidental) manslaughter flying everywhere.
Then there's what such a law would demand in monitoring women. I can forsee mandatory monthly pregnancy tests--hello, Romania?
And what if we discover that some of those early miscarriages or failures to implant (caused by genetic problems) can be "stopped" by certain medications but with other side effects? Sorry, the embryo was deformed and would otherwise have been miscarried at an early stage, but now you'll be forced to give birth to a deformed baby? A whole new generation of thalidomide babies? How much do you think the standard American woman will go along with that?
Idiots.
We've long observed conservatives sacrificing their own alleged principles once they are in power.
ReplyDeleteThe first case I remember was the (1986?) law to raise the national drinking age to 21. The mechanism used was to threaten states with withdrawal of federal highway funds if they didn't change their drinking ages.
Hypocritically, it was Reagan who had said, during the 1980 campaign, that he opposed the national speed limit of 55 because it violated states rights by -- you guessed it -- using the threat of withdrawal of federal highway funds as the enforcement mechanism.
For some reason many conservatives just aren't able to be honest about their motives.
doesn't scalia's reasoning in the oregon case, directly contradict his dissenting arguement in LAWRENCE V. TEXAS? if i remember that correctly, scalia argued that local communities had a right to decide and legislate their own morality, without federal interference.
ReplyDeleteDon't expect "consistency" from the anti-abortion contingent, Hypatia. They tend to take this imperative ("no abortion") as an absolute. But as is true of any large and complicated system (particularly one involving people, with sometimes conflicting and contradictory goals even personally), you can't expect both ideological "purity" and any type of consistency in the face of the many different questions and situations that arise, all of which require a bit of compromise, refinement, line-drawing, and nuance.
ReplyDeleteThus we have the Schiavo law, an absolute absurdity from any kind of a general conservative approach. The "big one" colours all other subsidiary "principles", and if in fact they happen to be utterly opposed to your #1 concern, they need to be abandoned in a millisecond: Never give an inch WRT the gold ring, even if your other "priciples" need to be stood on their head..... Schiavo has to be "alive", and this "life" has to be protected at all costs ... or you cede that the abortion questions isn't this absolute "life begins at conception and that's that" argument.....
The above observations also apply to some extent to the libertarians, IMNSHO. The objectivists have taken it to a high art form (I had some college buds that were seduced by the Randian mystique), but even the less doctrinaire libertarians are sometimes prone to such. And in all fairness, I should add that my Marxist biddies can be quite as doctrinaire. I've mellowed: You can't have everything you want (my brief law school experience was eye-opening and frustrating in how much stuff happensa even there which is logically inexplicable), but "if you try some time, you just might find, you get what you need....."
Cheers,
It is interesting to note that the federal government has not traditionally had a role in protecting life, except for federal employees. If someone were to murder me, the federal government would not get involved -- it would be a job for state police, and if caught the assailant would be tried under state law in state courts and sent to a state prison. Yet if I were terminally ill and decided to end my life with my doctor's help, then the federal government wants to interfere. Likewise, it seems under Laci and Conner's law, the federal government may get involved if someone kills a pregnant mother, even though they wouldn't in a double murder. Clearly many would like the FBI to have a role in hunting doctors who perform abortions. All these issues are allegedly about protecting life, yet the crime that is most clearly about life -- murder -- is one the federal government only gets involved in in very limited cases. So why is federal action necessary in all these other cases?
ReplyDeleteI'm trying to imagine what would happen if there was a federal ban on abortion... and I think it would honestly lead to a civil war. States like massachusetts and california, and the major cities, are never going to allow enforcement of these kinds of bans... and I think the images of women and doctors being subject to police violence/punishment will galvanize a huge hostile reaction. Abortion is one of the most emotional issues we have, capable of mobilizing visceral action on both sides. What you all forsee if something like this happens?
ReplyDeleteThere is an elephant in this thread. If one listens very carefully, one can hear the howls of delighted laughter of the conservatives reading the anguished posts here about how terrible it is that states rights are being violated. Who is to blame for this terrible situation? Just go back to the sixties and seventies when sanctimonious liberals crusading for various causes swept aside the protestations from conservatives that the chickens released in order to bully the states into doing what the liberals believed was right would come home to roost.
ReplyDeleteAs an aside, these rural sayings are sometimes not well understood by the city-raised citizens of today. Seventy-five years or so ago most people had chickens and a chicken house. Therefore, they knew that regardless of how far off you chased the chickens, come sundown they would return to sleep in the chicken house (which was often devastatingly invaded by a fox, but that is another saying).
So we are treated to the spectacle of liberals viewing what they have wrought. The good news is that when liberals prepare their jeremiads against federal power, most of the work has been done. Simply look up the conservative positions for the sixties and seventies. It’s all there.
Roberts actually scares me quite a bit, though for reasons that weren't reported, for the most part. Check out what David Luban wrote about his decision in Hamdan v. Rumsfeld:
ReplyDeleteAmong the issues Hamdan settled is a crucial question about who the 1949 Geneva Conventions protect. In the only split portion of the decision, the panel voted 2-1 that Geneva does not apply to the Global War on Terror. The implications of this holding are profound, and go to the very heart of modern human rights protection... In place of the split-level protections of Geneva - full protections in state-against-state wars, and at least minimum human rights the rest of the time - Hamdan creates a third tier of "protections," namely no protections at all, in the War on Terror. Where Geneva creates a main floor and a basement, Hamdan digs beneath the basement and adds a dungeon.
For anyone concerned about abuses of executive power in terms of detainee treatment, Hamdan is a deal-breaker.
By the way, the blog I linked to is a fantastic resource for reading up on abuses of executive power. Check out this page, which has hundreds of articles and blog posts on the subject.
ReplyDeleteDave
Thank you for a really insightful post, hypatia, and anyone who uses the word "codswollop", as you did today on another thread, is automatically promoted to the top of my "must read" list:)
ReplyDeleteCan anyone doubt that both Roberts and Alito would jump joyfully with both feet onto that bandwagon?
ReplyDeleteMaybe, but I don't think Clarence Thomas would.
Arne L. writes: But as is true of any large and complicated system (particularly one involving people, with sometimes conflicting and contradictory goals even personally), you can't expect both ideological "purity" and any type of consistency in the face of the many different questions and situations that arise, all of which require a bit of compromise, refinement, line-drawing, and nuance.
ReplyDeleteMmm, yes, but. One justice's nuance and compromise is another's odious capitulation to invasion of the 10th Am and the rights retained by the states, not to mention the 9th, those rights retained by the people. Those were not mere afterthoughts introduced into the BoR, they have actual meaning. Among the repulsive things this nation has been doing because the High Court (and Congress) have not respected those meanings, is locking up hundreds of thousands of citizens in federal prisons for the "crime" of using or selling substances the govt does not like. Such obscenities are avoided (at least on the federal level) when one does not wander off into "nuance" or, as Arkes puts it, a need to resolve "vexing" moral problems on a national scale.
In any event, I expect judges and justices to exercise good faith when applying the jurisprudential principles they have claimed to adhere to. In the past, I've been pretty hard on some sins I ascribe to "liberal" legal theorists, but at this point I'm far more concerned with how right-of-center folks dominating the bench are deviating from the federalism they have so loudly espoused. Which brings me to:
notherbob 2: Therefore, they knew that regardless of how far off you chased the chickens, come sundown they would return to sleep in the chicken house (which was often devastatingly invaded by a fox, but that is another saying).
So we are treated to the spectacle of liberals viewing what they have wrought. The good news is that when liberals prepare their jeremiads against federal power, most of the work has been done.
While I understand and can even appreciate the deep sense of satisfaction you are evincing in your "chickens coming home to roost" comments, I think it is ultimately a juvenile sentiment, and not really one a good citizen should be ballyhooing. I'm a True Believer in the political order the Founders established, and seeing people I had trusted to maintain it induces something close to despair. The "liberals," in the jurisprudential context, never promised fidelity to my understanding of how the High Court should rule when federalism is implicated. the conservatives, simply, did.
Their hypocrisy is a betrayal not so importantly of ideology, but rather, of the nation. And any defenses they offer for themselves --such as the disgusting nonsense I quoted from Hadley Arkes -- (and this is for you Eyes Wide Open), is codswollop.
Note: Have not read thread yet, but ...
ReplyDeleteThis would require Reps. to get a fillibuster-proof majority. They would have to pick up 5 seats.
If Katherine Harris gets caught up in the Cunningham/Wade deal, Bill Nelson, D-Fl, should keep his seat. Prior to now-exposed connection with Wade and MZM, he was leading, IIRC, 55%-31%. Regardless of exact number, was a sizable lead.
WOW! WOW! WOW! I will cross post this on all of today's threads.
ReplyDeleteDid you all catch Lou Dobbs just now? It was unbelivable. He's madder than we are!
He said "This government is telling the American people: go to hell."
He hit all the points, way beyond the Port deal. The incompetance, the corruption, the multinational corportist control of government, the huge deficit, the Indian nuclear deal fiasco, the war, the transparency of trying to change the topic with this line item veto proposal which has already been ruled unconstitutional by the SC, everything. His guests were all with him. There was talk of a Third Party.
There was talk of a revolt in the heartland.
It was great. Catch the rerun. It'll really cheer you up.
Looks like Pandora's box has not only be found and looked into, but it's in the process of being nuked open.
Spead the word to watch Lou every day. He's doing on TV what Glenn, thersites, AL, hypatia, others and the rest of us are doing on the Internet, trying to, as he put it, save democracy in this country.
And we points out both parties are totally corrupt, but he keeps suggesting that a first step is to end Republican control of both the Presidency and both houses.
Also, does it make you mad that we have to now "beg" another government to revise a deal which is seen by 75% (the new polls) of Americans as being a threat to our national security?
And Bush is supposed to be "macho"?
Define macho.
WOW! WOW! WOW! I will cross post this on all of today's threads.
ReplyDeleteDid you all catch Lou Dobbs just now? It was unbelivable. He's madder than we are!
He said "This government is telling the American people: go to hell."
He hit all the points, way beyond the Port deal. The incompetance, the corruption, the multinational corportist control of government, the huge deficit, the Indian nuclear deal fiasco, the war, the transparency of trying to change the topic with this line item veto proposal which has already been ruled unconstitutional by the SC, everything. His guests were all with him. There was talk of a Third Party.
There was talk of a revolt in the heartland.
It was great. Catch the rerun. It'll really cheer you up.
Looks like Pandora's box has not only be found and looked into, but it's in the process of being nuked open.
Spead the word to watch Lou every day. He's doing on TV what Glenn, thersites, AL, hypatia, others and the rest of us are doing on the Internet, trying to, as he put it, save democracy in this country.
And we points out both parties are totally corrupt, but he keeps suggesting that a first step is to end Republican control of both the Presidency and both houses.
Also, does it make you mad that we have to now "beg" another government to revise a deal which is seen by 75% (the new polls) of Americans as being a threat to our national security?
And Bush is supposed to be "macho"?
Define macho.
Sorry, trying to do so many things at once before the vote tomorrow that I no longer have time to preview my posts for typos and misspellings. I know you all understand :)
ReplyDeleteDear Notherbob,
ReplyDeleteYours is not the only elephant in the room.
Consider for a moment the implications of an originalist, natural rights view of the Ninth Amendment, restoring that provision to its proper role in our scheme of Constitutional liberty. For those unfamiliar with the revolution in Ninth Amendment scholarship, a useful starting point if Professor Randy Barnett's unpublished article, The Ninth Amendment: It Means What It Says, which can be downloaded at www.bu.edu/law/faculty/papers.
Think a broad Federal restriction on abortion can stand against the Ninth Amendment returned from "exile" (fuhgedabout Justice Douglas' "emanations" and "penumbras," we're talking about the theory of Constitutional interpretation that a majority of the current Supremes supposedly embrace)? Don't bet the rent money on it -- you could find yourself living in a refrigerator box under a freeway.
Abortion opponents are looking like getting hoist by their own analytical petard. And I, for one, plan to drink deeply from the well of schadenfreude when it happens.
libellus: Under preemption doctrine, any federal legislation would trump a state court's construal that its equal rights amendment precluded laws against abortion. Article VI, Section 2, of the Constitution provides that the "… Constitution, and the Laws of the United States … shall be the supreme Law of the Land." As a general rule, states may be more restrictive than federal law in any given area, but not less so.
ReplyDeleteYou are correct that some consider that the fetus should be decreed to be a person and thus his/her life should be protected by the 14th Am. My socially conservative Con Law professor thought the idea had merit. I haven't much investigated the feasibility, but I suppose Congress could try to reach this result by passing enabling legislation of some sort under the rubric of the 14th.
Otherwise, however, there is no colorable constitutional warrant for Congress's entering the area of abortion, save for arguing that abortion is a service, and/or abortion clinics purchase supplies from many states, or somehow bringing a state's intrastate abortion services within the interstate stream of commerce. Such outre notions now fly among some so-called conservatives.
Hypatia says:
ReplyDeleteAmong the repulsive things this nation has been doing because the High Court (and Congress) have not respected those meanings, is locking up hundreds of thousands of citizens in federal prisons for the "crime" of using or selling substances the govt does not like.
Oh, I agree with you wholeheartedly. But the main problem is not that such laws are necessarily un-Constitutional, but more that they are simply a piss-poor idea andwaste of money and lives.
But I also agree that the gummint has no business telling people what they can do behind closed doors (within limits, albeit quite a bit more lax than we have now). I wouldn't say that the gummint cannot make a case that the prohibition of a drug that is extremely dangerous would be Constitutional; at some point you have to step in and say that this drug is waaaayyyyyyyyy over the line and inimical to public health and safety (consider for an example some of the "designer" drugs that are suspected as neurotoxins, as is suspected of MDMA; if there's good proof that a drug permanently kills your neurones [and in the CNS, there's no other way thanm permanent], I'd say that the drug ought to be prohibited). I guess my "libertarian" tendencies do run up against the hard rocks of reality at some extreme point.
I'd note that the same "imperative" that motivates the CRW opposition to such drugs as RU-486 and Plan B also seems to bleed over into opposition to other drugs as well (or is it the other way around? Calvinistic "no fun allowed here"?). Personal autonomy and personal responsibility are shucked for a gummint-assisted "nanny" that will decide for you all the big and hard questions ... and even the easy ones, if you let them.
Such obscenities [drug laws] are avoided (at least on the federal level) when one does not wander off into "nuance" or, as Arkes puts it, a need to resolve "vexing" moral problems on a national scale.
Ummm, it's the Prohibitionists that seem to lack the "nuance" mostly. There is a hard-core libertarian crown that would push for "anything goes", but as for myself, I'm willing to cede a few limits to "freedom" (but not many). The libertariasn will argue that once you give them an inch, the Prohibitionists will take the whole store, so we need to stay at the "bright line", and not allow any exceptions to be drawn. While I'm sympathetic to the argument and concede it may well be right, I'm not convinced, and I'd like to think that ceding the really extreme cases for just cause (i.e. banning neurotoxins) should, at least in a somewhat rational political milleiu, not be all that dangerous.
I'm also willing to cede the right to wiretaps under appropriate circumstances. But I tend to draw a hard line at the language of the statute: "no search without a warrant", and have argued that the "exigent circumstances" and other incursions on the warrant requirement (let alone the gross contempt displayed by the Dubya maladministration for the Fourth Amendment) are simply convenient loopholes to avoid the Fourth Amendment by police officers who don't feel like doing their job (or that don't feel they can do their job without bending the rules). If you're "patting for weapons", why are you finding envelopes of cocaine? Want to search; get a warrant, I say. This also applies for wiretaps: The feds had pushed for a "free bite of the apple", an exception to the warrant requirement when they claim that lives may be in danger. I say they're just too lazy to get a warrant before jumping the wall of the Brentwood estate. I'd note that it seems that a fair (if not major) proportion of traces (not Title III content taps) put in to telcos may be requests for emergency location, perhaps a parent looking for a potential runaway kid (and for this, I'm not sure a warrant is even required). I don't have much problem with this, provided it's not done for criminal investigatory purposes. If they want to snoop, though, they should get the warrant, or be prepared to abandon any "evidence" in any subsequent criminal proceedings (which should not be a problme provided their original "emergency justification" was in fact honest).
Cheers,
Good post - i have been lamenting on this same topic for quite some time.
ReplyDeleteWhat irks me most about the Oregon decision is that it is fundametnally flawed when compared to Raich (the medical marijuana case).
What the hell is going on where one state (oregon) can pass a constitutional law allowing a doctor to end the life of a patient and another state's (california's) attempt to help patients PROLONG life with pot is unconstiutional?? Is that right??
Is healthcare in this country a traditional state activity or not? What the hell is going on? And i would like to know how you view Thomas' dissent in Raich, which foreshadows your main point: If the purely intrastate, non-commercial personal growing of marijuana in one's own yard on doctor's recommendation is considered interstate commerce....what activity is not?
What limit on federal commerce power is there? Answer: None
It was Aschcroft and the Bush Admin. who assailed Raich and the will of the voters of California and now ten other states in that case - - and now Gonzo et al in Oregon. Whatever happened to State's Rights?? The Tenth Amendment?? The Conservative party?? Shall we all abandon thee and embrace libertarianism in order for our views to be adequately addressed? Bizarro world indeed!
i jsut realized someone else commented on Raich earlier...and you responded. I will take that as a response to my post as well as you addressed all salient points. Thank you for guest blogging and railing the current group of faux conservatives.
ReplyDeleteJust an aside for someone asking about commerce clause jurisprudence as applied in Raich:
ReplyDeleteAlthough it may be a stretch, i will attempt a very brief synopsis of how purely intrastate activity can be regulated on the federal level under the commerce clause.
The main idea here is "aggregation" or some synonym thereof. The idea being that any given instance of the activity in question, whether growing wheat for home consumption or pot for medical consumption, may not in itself affect interstate commerce - you cant end the analysis there. Because if millions of people were to do the same thing, then some effect on interstate commerce could be seen. This is one of the main gov.t arguments used in Raich. Although her own marijuana was not bought or sold or placed into commerce in any way, if millions of californians (and citizens of ten other states who legalized medi-pot) were all to grow their own, it would have a negative impact on the illegal black market in marijuana since less people, in the aggregate, would be buying it. Still with me?? That is the rationale for how purely intrastate activity can affect interstate commerce.
Now attempt to rationalize what interest the bush administration has in keeping the demand for pot solely within the illegal black market...and you can arrive at the "total police state prison/military industrial complex fascist regime" to be discussed at length on another post at another time. Cheers-
Hm, I don't think it does your argument much good to completely ignore the elastic clause, which of course is the constitutional clause that does allow for expanded federal powers. Really the question is not which federal powers are explicitly delineated, but what limits are on the elastic clause.
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