Levinson and Balkin on the Politics of Roe:
Over at the Legal Affairs Debate Club, Sandy Levinson and Jack Balkin are debating "Should Liberals Stop Defending Roe?"
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Somehow I overlooked federal preemption. Deprived of the political spoils of Roe, Repubicans in Congress will have incentive to use federal legislation restricting abortion to retain political power. Very little will be returned to the states.
Maybe, maybe not.
Perhaps more accurate than my previous post: Both parties, operating nationally, will have political incentive to impose a national solution. There will be very little incentive for either party to risk the benefits that a running on a national platform brings by allowing ideological disagreements, on an issue with as much political power as abortion, to be settled on a local level.
Republican leaders have run away from Samuel Alito's 1985 statement that the Constitution does not protect a right to abortion. President Bush has refused to take a position for a reversal of Roe. William F. Buckley said in a recent essay that the decision will not be reversed. Even Charles Fried, who argued the Reagan-era briefs against Roe, now says it will not and should not be reversed.
Except for a few conservative bloggers, no one even makes the case anymore.
At that point, we would have a situation, similar to Raich v. Ashcroft, and the current Oregon assisted suicide case, with the "states rights" folks being on the left and the "national power" folks being on the right. Since I consider myself a person with a consistent federalist philosophy as represented by the Lopez and Morrison decisions, I would find that any attempt by a Republican national government to impose abortion restrictions on states such as California and New York with presumably liberal abortion laws to be a violation of the Commerce Clause.
As an aside, the hypocrisy of the nation's politicians on the federalism issue - on both sides of the political spectrum - is breathtaking.
The will of the national majority, perhaps. (depending on how you view the effect of "safe districts" etc. on any notion of "representation." More like "the will of rulers, as checked by those whom have been previously selected as maximally sharing a single ideology." But that's just a rant, beside the point.)
The "return to the states" argument in the abortion context is not the same as "return to democratic will." It's thrust isn't so much in the role of judicial enforcement of unenumerated rights and the democratic will. If it is, then it runs into the arguments about tension between rights being justified by and secured to individuals, and the role of individual rights in a majority-rule democracy. (e.g. Tom Angry.)
"The return to the states" argument is that, when discussing government involvment in moral issues, the jurisdiction of the governed is best measured by its ability to generate consensus. Whether or not it should be resolved judicially or legislatively at that level is a different question. And whether or not a party does/n't screw up to the point of losing safe seats on the federal level is also beside the point of the nexus between government power and consensus in moral issues.
I think that you and I probably agree on federalism. It just seems apparent that state solutions are an unlikely consequence of overruling Roe-Casey, and thus should carry little weight in abortion arguements. (Assuming that Wickard-Darby-Raich etc. isn't going anywhere.)
The only valid problems I see is a federal usurpation of power, and restrictions on scientific research (NOT de-funding, for, as Thomas Jefferson said, "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical.")
And no, this issue ideally should not be settled by the "will of the majority." That is an extreme copout on any issue.
If abortion is NOT a constitutional right, then it, like all other non-constitutional issues, is subject to the "will of the majority" as expressed through the legislative and executive branches of government.
Only if abortion is constitutionally protected does the will of the majority become, in large part, irrelevant.
The Democrats are forced by their funders -- government employee unions, trial lawyers, the gun control lobby, radical environmentalists, anti-defense groups nostalgic for their Vietnam War salad days, and other such fringe groups -- to espouse any number of issues that alienate the majority of voters. These funders keep the heirs of the McGovernites in control of the Party and together the two groups ensure that the Party takes positions guaranteed to alienate voters while invigorating the base. The steady decline in party membership and control of elective offices demonstrates this.
On abortion the official Democrat position is completely out of whack with public opinion. When you honestly analyze the data, over 3/4 of Americans want abortion illegal or strictly controlled. Opposition to unrestricted abortion is greater among women than men and among older persons than younger. The numbers -- even the age-specific dis-approval rates -- are surprisingly constant over the course of nearly four decades, suggesting that as people mature their desire for limiting abortions increases.
I'm limiting my discussion to politics, but a strong case can be made that Griswold v Connecticut, Roe v Wade and the decisions in between are in fact just as demented and free of constitutional merit as, e.g., Plessey v Ferguson. The tortured reasoning behind these decisions matches Taney's convoluted 100+ page defense of the indefensible.
Democrats may want Roe overturned, as I agree the initial reaction will be quite favorable to them, but liberals should not. The idea behind Roe supports a radical individualism and relativistic statement about the human person that, if endorsed as part of our Constitution, immeasurably aids them on a host of intellectual fights. If it goes, much of the cultural/legal support for abortion on demand, destruction of other enacted laws on the nature of family and sexuality, and even the sameness of men and women will be undermined with it. The statement "Abortion is a Constitutional Right" has been worth many divisions in the culture war. With it removed, flanking movements against the Left,now forestalled can proceed.