mad anthony

Rants, politics, and thoughts on politics, technology, life,
and stuff from a generally politically conservative Baltimoron.

Saturday, August 28, 2004

Separating law from politics...

Ramesh Ponnuru over at the National Review Online talks about a suggestion David Frum had - that Giulianirun on a platform that's pro-choice but anti Roe v Wade..

I'm less interested in the Giuliani part than the legal issues mentioned in this sentence:
Now one can certainly be pro-choice and anti-Roe. I can think of several journalists and the odd legal academic who take this position. But examples of practical politicians who take it are hard to come by. Most politicians seem to think that being against Roe is a harder sell, politically, than being generically pro-life, and tend to downplay their anti-Roe stance, in part because many people are under the mistaken impression that getting rid of Roe means prohibiting abortion.

I think that most people in the U.S. don't grasp the idea of judicial restraint and having a narrow interpretation of the constitution. It's possible to like the effect that certain cases had - like Roe V. Wade - and still think that they were bad law, that the interpretation of the constitution used to produce those outcomes strays from what the founders intended.

I think the best example of this is Robert Bork, who didn't get the Supreme Court nomination because of a twisting of his belief in judicial restraint. He had criticized the law behind Roe v Wade, Griswold v Connecticut (the case that gave the Constitutional "right to privacy" that Roe expanded on), and even Brown v Board of Ed. The last got him labeled as a racist. But while Bork is pro-life, he wasn't pro-segregation - he just thought that the reasoning in Brown was inconsistent with a strict interpretation of the constitution.

I think people tend to look at court cases ideologically instead of from a legal perspective, and if the outcome is one they agree with, they assume the legal interpretation is acceptable. I think the constitutional interpretation issue is too complex for many people, and thus even though it doesn't strike me as odd to have a pro-choice person who still thinks Roe V Wade is bad law. I don't have a problem with at least some legal abortion, but I think Roe was based on a very contorted reading of the constitution, one that assumes rights that don't actually exist.


Post a Comment

<< Home