Two nights ago, John McCain, breaking with a convention steeped in partisan & far-right rhetoric, made only one overt mention of a culture war issue. His choice, the typical Limbaugh talking point on “activist judges” ruining our constitutional balance, was nonetheless telling. If McCain’s proposal sounds moderate enough – in his words (@ 22:01), he seeks “judges who dispense justice impartially and don’t legislate from the bench” – careful observers of the right will note that conservative ire against “activist judges” is really a blanket expression of anger at a culture that has, with the help of the judiciary, moved to the left on positions of social import, from abortion to women’s equal pay to gay rights (all of which McCain opposes).
According to the typical conservative narrative, the people ought to have the right to, acting as a majority, do pretty much whatever they damn well please, especially by stigmatizing unpopular social groups and erecting textual & physical monuments to the majority religion from sea to shining sea. While this position suffers from significant and glaring problems (What Would John Stuart Mill Do?), now’s not the time for a seminar on the federal judiciary and democracy’s need for a countermajoritarian branch. Perhaps some other time.
No, what really gets me is the conservative willingness to bemoan the activist lib’rul judiciary while conjuring (especially in the past years) a shockingly “activist” conservative judiciary, one that appears to decide cases based only on politics, without respect for established precedent. If you want to talk about the original activist judge, look to Chief Justice John Roberts, and don’t let his boyish good looks fool you. But, again, I digress.
The Republican Party Platform underscores the GOP’s particular love/hate relationship with the judiciary, and lackadaisical approach to the Constitution, by proposing first a constitutional amendment protecting infant life, and then, curiously, in a plank that’s been around since at least 2000, “legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.”
Huh?
Aside from the odd ramifications of such legislation – end employment discrimination against the unborn!!! – it would almost surely be unconstitutional. Since City of Boerne v. Flores the Court, in an opinion endorsed by Justice Rehnquist, has made clear that the Fourteenth Amendment can neither be contracted nor expanded by federal legislation. And obviously an interpretation that attributes to the Fourteenth Amendment’s framers an intention of protecting “embryos” as “persons” or as a discrete & insular minority would strain credulity, as does the idea that a mainstream party would propose such a blatantly illegal course of action.
The proposal that the Constitution be amended to protect embryos is scarcely less ludicrous. I mean, seriously: is there anything at this point the conservative movement doesn’t want to amend? Mike Huckabee may not like it, but you have to swear allegiance to the Constitution as it stands: not as you dream it to be.
While David Plouffe may not be right to say that this Republican Platform is the most conservative yet, it certainly may be the most ludicrous.
It’s always baffled me that the “New Federalists” are able to push this message that the SCOTUS shouldn’t be able to apply stare decisis and the Constitution to popularly voted laws that violate the Constitution. Are they going to try to overturn Marbury v Madison? They aren’t ignorant, but they think we are.
Posted by Mike Haubrich, FCD | September 6, 2008, 8:21 amThere are certainly limits beyond which the unelected branch can’t transgress: but that line is adequately held by limits on the federal courts (justiciability doctrines), the court’s need to protect its own legitimacy, and the interpretive limits of the fourteenth amendment. To cry for a restrained judiciary – especially when the same is accompanied by a cry for an active judiciary, to overturn Roe and damn near everything since 1950 – smacks of partisanship, not concern for judicial integrity. Grrr!
Posted by Ames | September 6, 2008, 12:47 pm“Conservative ire against activist judges” is exactly what you say it is, but I think that many would acknowledge that. There’s a lot of leeway in that “with the help of the judiciary” clause, and, as you’ve expressed it, they’re not obviously wrong to be angry.
It’s also fair to say that they’re advocating for majority rule on almost every issue. It’s a forgivable mistake to make, since they want majority rule on a lot of controversial issues, but it’s important to recognize that there’s a lot of common ground. Even their most obvious unconstitutionalities, such as wanting to be able to put the Ten Commandments outside of courthouses, only infringe on free religion at the margins, and I don’t think that many people at all would think a court wrong for striking down legislation that more directly attacked various constitutional rights.
It should also be noted that there are perfectly reasonable and consistent ways of defining ‘activist’ that don’t include anything about respect for precedent.
Also, you miss the point of an anti-abortion amendment. This is simply not a case of conservatives not being happy with what the Constitution says. It’s their firm belief that the Constitution does not say what Roe claims it says. However, as you point out, a Court decision can’t be overturned by the people except through a constitutional amendment – legislation doesn’t cut it.
Posted by Gotchaye | September 6, 2008, 1:58 pmSorry, that should be “It’s also -not- fair to say…” at the beginning of the second paragraph.
Posted by Gotchaye | September 6, 2008, 2:02 pmI want to know where’s the damn push for an amendment explicitly guaranteeing protection for abortion. You want to say the constitution doesn’t explicitly protect it? Fine, we’ll play along with your evisceration of the 9th, and fix that little oversight.
Posted by Steve | September 6, 2008, 2:38 pmGotch – most commonly objections to abortion come in the form of an argument against the idea that it’s covered in an affirmative grant to women by substantive due process. Cons argue against that with the “it’s not in the constitution” point.
The fourteenth amendment argument is either an attempt to explicitly guarantee countervailing due process rights to the embryo, or label it as a person entitled to equal protection. Either way it’s notexactly the same as arguing that the Constitution doesn’t cover women’s right to choose; it’s attempting to set up a stronger countervailing right.
Posted by Ames | September 6, 2008, 2:51 pmCould you explain that first paragraph in more detail? I’m having trouble following. Some pro-lifers argue that a right to abortion isn’t granted by substantive due process, and cons (conservatives? or pros and cons?) argue against that?
I think I agree with you that many pro-lifers want to set up a stronger countervailing right of fetuses in the Constitution, but it still makes sense to say that this is motivated primarily by the idea that the Court overstepped in Roe. It can probably be called an overreaction compared to drafting an amendment that merely states that abortion policy will be decided legislatively, but they’re going for clarity and they see pro-life policies as already being democratically favored (and so, for them, there’s little difference between the two hypothetical amendments).
Incidentally, here’s a legal question I’d been wondering about: is the feeling among legal scholars that Roe is good law and would be good law even if fetuses were unambiguously persons? If that’s the case, then Roe needs to be defended in those terms, as there’s actually common ground there. However, I’ve never seen that attempted in a more public sphere. From the arguments of Roe supporters that I’ve seen, I think that pro-lifers are rather justified in concluding that the Court took it upon itself to determine when a fetus becomes a person.
Posted by Gotchaye | September 6, 2008, 3:25 pmSorry – I should’ve phrased it better. Was sleepy. (Cons)ervatives and pro lifers alike argue that abortion doesnt’ flow from substantive due process; oddly, that’s not the argument they’re making in the RNC platform. Frankly, it’s a good argument; I’m surprised to see them drop it for a weak and novel argument about amending the 14th to extend “person” to “fetus.”
I don’t think we’ve ever discussed what would happen if the fetus were unambiguously a person. Honestly I think the only way abortion works politically & ethically is if the fetus is not a person, so for me, the question of whether or not Roe would be good law in that case is beside the point. I suspect it wouldn’t be.
To that extent, conservatives are right that the Roe court took it upon themselves to define when “life” begins, but they actually had good cause to do so, reflecting on the historical (but not often spoken of) practice of abortions up until “the quickening” – i.e., when the baby moves. That’s as fair a line as any to call, and gives objective indicia rather than anything talking about a spirit. That line can be defended, too, as a good compromise between the woman’s interest in her body, and the state’s interest in the potential life she carries. Tough call, nonetheless…
Posted by Ames | September 6, 2008, 5:29 pmAh, that’s clearer, and I agree.
What makes me uneasy about Roe, I think, is that while the Court may have done the best job possible of using the tools of legal scholarship to determine when a fetus becomes a person, that’s a long way from saying that they were competent to answer the question in general or that it was at all appropriate for them to make the attempt. If it’s the case that the legal status of abortion laws depends on the moral status of the act, then, unless the Court is more qualified to determine moral right and wrong than the populace (and is further able to justly impose its more qualified morals on the populace), the courts should simply have left the matter alone, it seems to me. And I think it’s clear that our democratic ideals require us to say that no group of people in a society is more qualified to determine moral right and wrong than any other group. As a general principle, we recognize that it’s the legislature’s role to craft law in keeping with society’s mores and it’s the judiciary’s role to keep the legislature honest, so to speak – the judiciary can point out when the legislature is operating under demonstrably false beliefs or when it goes against principles that it itself had expressed strong and ongoing adherence to, but I don’t see that Roe falls into either category and I can’t come up with a general principle that lets the judiciary do something else without also letting it do a bunch of things we wouldn’t want.
Posted by Gotchaye | September 7, 2008, 3:10 am,i>No, what really gets me is the conservative willingness to bemoan the activist lib’rul judiciary while conjuring (especially in the past years) a shockingly “activist” conservative judiciary, one that appears to decide cases based only on politics, without respect for established precedent. If you want to talk about the original activist judge, look to Chief Justice John Roberts…
“Under Roberts’ leadership, the court has agreed to hear fewer polarizing constitutional cases and more cases of interest to business, which the Justices are more inclined to resolve without dividing along ideological lines. Of the 15 cases in which the U.S. Chamber of Commerce filed briefs this year, 80% were decided by 7-2 or higher, and a third were unanimous.
…
A sign of Roberts’ success in putting his stamp on the court: he was in the majority in 90% of the cases this term, more frequently than any other Justice.
http://www.time.com/time/magazine/article/0,9171,1820165,00.html
Posted by Progressive Conservative | September 7, 2008, 4:15 pmSorry, I butchered the HTML on that last one.
Let’s try again:
From Ames: No, what really gets me is the conservative willingness to bemoan the activist lib’rul judiciary while conjuring (especially in the past years) a shockingly “activist” conservative judiciary, one that appears to decide cases based only on politics, without respect for established precedent. If you want to talk about the original activist judge, look to Chief Justice John Roberts…
“Under Roberts’ leadership, the court has agreed to hear fewer polarizing constitutional cases and more cases of interest to business, which the Justices are more inclined to resolve without dividing along ideological lines. Of the 15 cases in which the U.S. Chamber of Commerce filed briefs this year, 80% were decided by 7-2 or higher, and a third were unanimous.
…
A sign of Roberts’ success in putting his stamp on the court: he was in the majority in 90% of the cases this term, more frequently than any other Justice.”
http://www.time.com/time/magazine/article/0,9171,1820165,00.html
Posted by Progressive Conservative | September 7, 2008, 4:25 pmThat’s fine, and last term was better, but he’s still been willing to strike blows where he can get away with it: on abortion (Gonzales) and on campaign finance (Wisconsin Right to Life), letting stand verdicts that make sense only if their motivations are solely political.
Posted by Ames | September 7, 2008, 7:39 pmAm confused. I read him as saying — we want the unborn children to be considered persons for purposes of the 14th amendment. So they’re not a d&i m, but they get all the protections that constitutional persons have. Obviously, the goal is to restrict or prohibit abortion — constitutional persons have rights — and obviously that’s stupid — Congress doesn’t get to decide what an Amendment means — but I’m not sure the ramifications are as absurd as you think they’d be. Like, they wouldn’t get special protection under the EP clause, but they’d get SDP protection, no?
Posted by Jon | September 7, 2008, 10:56 pmPart of the problem with the plank is that it’s purposefully vague. Reading “unborn” into the Fourteenth leaves open the question of whether it’s for EP or SDP, I think. Both would be effective towards their ends.
Posted by Ames | September 8, 2008, 12:22 am