The Constitution, democracy, judges, and Specter
Andrew McCarthy has an excellent essay on National Review Online today discussing the impact of Roe on our ability to govern ourselves, and the competing judicial philosophies that begat the decision. He also examines to which of those philosophies Senator Specter subcribes. Here are a couple of teasers:
"The judiciary-committee controversy is not about abortion. It is about whether there is any meaningful limiting principle that compels judges, regardless of their predilections and the trendy pieties of any particular era, to stay their hands so that Americans are free to live as they choose — including in 50 different ways if that is the judgment of the people in 50 different states.
"There are, essentially, two competing visions of judicial philosophy. The first, the one that is regnant at this time (and to which it appears Senator Specter subscribes), is that the Constitution — with its many pliable terms — is as manipulable as necessary to place beyond democracy any issue that may be said to reflect a "value" the American people revere at a given time. The problem here is that this camouflages a brute power reality.
"In truth, the American people have very few values which enjoy such broad consensus that, given the choice, our society would enshrine them in our Constitution and render them immune from further popular consideration, regardless of evolving attitudes or changed circumstances. . . .
"The second school of thought holds merely this: that judges are not supreme. It contends that there are firm, objective limits to the areas of life that jurists may remove from the democratic self-determination of the American people. They are found in the text of the Constitution as it was originally understood at the time its provisions were adopted. They do not change over time or with passing fancies. This philosophy is erected on an unchanging premise: In a democracy, it is to be presumed that great social conflicts will be resolved democratically. That presumption is not beyond rebuttal, but for it to be overcome there must be unmistakable proof that the dispute at issue was removed from democratic consideration by the Constitution.
"Thanks to Roe, this philosophy has been inextricably bound to attitudes about abortion, and thus shamelessly maligned. Nevertheless, it is not a pro-life view, any more than it is pro-choice, or anti-gay, or unfriendly to civil rights. It is a pro-democracy view. It says the people should be trusted with their own destiny, not have destiny imposed on them by judicial fiat.
"Further, it recognizes the salubrious attributes of a federalist democracy that make it inestimably preferable to a suffocating nomocracy. . . .
"[In a world without Roe, t]here would also not be the embarrassing spectacle of judicial nominees contorting themselves at confirmation hearings as they parry with senators about their personal views on abortion or, worse, shy away at all costs from saying forthrightly something few serious practitioners now dispute: namely, that Roe v. Wade — regardless of what one thinks about abortion as a matter of public policy — was a terrible decision as a matter of constitutional law.
"Of all that has been said by and about Senator Specter in the last week or so, nothing compares to his remark — bizarre coming from so superb a lawyer — "that Roe versus Wade was inviolate. . . .
"Who governs: the people or the courts? President Bush's reelection should be a herald of self-determination. Senator Specter's history suggests a tolerance, and too often a preference, for judicial diktat. That is the conservative objection against his accession to the Senate's judiciary chair. It should not be framed as if it were about abortion."
Read the whole article.
"The judiciary-committee controversy is not about abortion. It is about whether there is any meaningful limiting principle that compels judges, regardless of their predilections and the trendy pieties of any particular era, to stay their hands so that Americans are free to live as they choose — including in 50 different ways if that is the judgment of the people in 50 different states.
"There are, essentially, two competing visions of judicial philosophy. The first, the one that is regnant at this time (and to which it appears Senator Specter subscribes), is that the Constitution — with its many pliable terms — is as manipulable as necessary to place beyond democracy any issue that may be said to reflect a "value" the American people revere at a given time. The problem here is that this camouflages a brute power reality.
"In truth, the American people have very few values which enjoy such broad consensus that, given the choice, our society would enshrine them in our Constitution and render them immune from further popular consideration, regardless of evolving attitudes or changed circumstances. . . .
"The second school of thought holds merely this: that judges are not supreme. It contends that there are firm, objective limits to the areas of life that jurists may remove from the democratic self-determination of the American people. They are found in the text of the Constitution as it was originally understood at the time its provisions were adopted. They do not change over time or with passing fancies. This philosophy is erected on an unchanging premise: In a democracy, it is to be presumed that great social conflicts will be resolved democratically. That presumption is not beyond rebuttal, but for it to be overcome there must be unmistakable proof that the dispute at issue was removed from democratic consideration by the Constitution.
"Thanks to Roe, this philosophy has been inextricably bound to attitudes about abortion, and thus shamelessly maligned. Nevertheless, it is not a pro-life view, any more than it is pro-choice, or anti-gay, or unfriendly to civil rights. It is a pro-democracy view. It says the people should be trusted with their own destiny, not have destiny imposed on them by judicial fiat.
"Further, it recognizes the salubrious attributes of a federalist democracy that make it inestimably preferable to a suffocating nomocracy. . . .
"[In a world without Roe, t]here would also not be the embarrassing spectacle of judicial nominees contorting themselves at confirmation hearings as they parry with senators about their personal views on abortion or, worse, shy away at all costs from saying forthrightly something few serious practitioners now dispute: namely, that Roe v. Wade — regardless of what one thinks about abortion as a matter of public policy — was a terrible decision as a matter of constitutional law.
"Of all that has been said by and about Senator Specter in the last week or so, nothing compares to his remark — bizarre coming from so superb a lawyer — "that Roe versus Wade was inviolate. . . .
"Who governs: the people or the courts? President Bush's reelection should be a herald of self-determination. Senator Specter's history suggests a tolerance, and too often a preference, for judicial diktat. That is the conservative objection against his accession to the Senate's judiciary chair. It should not be framed as if it were about abortion."
Read the whole article.
posted by Hal | 9:46 AM
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