In an otherwise responsible and even interesting OpEd on what sorts of questions the Senate should ask Judge Roberts, liberal con law guru Cass Sunstein implies — actually, more than implies — that there are only two kinds of conservatives:
No one doubts that [Judge Roberts] is conservative, but it is not easy to say what kind of conservative he is. Does he have extremist tendencies, as some people fear, or is he conservative in the literal sense — a skeptic about liberal activism who is devoted to stability in the law?
In other words, insofar as conservatives maintain and preserve precedents that resulted from liberal activism, they are good conservatives. Insofar as they seek to overturn or narrow activist liberal precedents, they reveal “extremist tendencies.”
Conservatives are going to have to deal with the fact that their position on the warren court is the extreme position out of line with how americans view their rights.
Actus-
You betray the fundamental weakness of liberal legal thought. How people “view their rights” is unimportant – it’s what their rights actually are that matters. During Jim Crow south, people viewed it as their right to treat others poorly simply based on skin color. Does that mean that the courts were wrong in stopping this, or that legistlatures were trampling on their rights by passing civil rights legislation? Or, could it possibly be that we have “certain inalienable rights” that, for the most part, are enshrined in the Constitution and do not at all depend on whether peopel believe they have a certain right or not? The problem with the “living constitutionalism” that modern liberals spout is that it bases fundamental rights on what people think they should be, rather than what they are.
“The problem with the “living constitutionalism” that modern liberals spout is that it bases fundamental rights on what people think they should be, rather than what they are.”
Its not the basis on which the rights stand, but it is the basis on which I call the republicans the extreme view. Don’t like ‘penumbras’? well, tell americans you would subject their bedrooms to government intrustion. And then tell me how extreme you are.
Once again, you mistake judicial and political philosophy. Just because something is not expressly barred by the consititution does not mean that it is something that would be popular and supported by the people if legislatures acted on it. If Roe were overturned tomorrow, I guarantee you that pro-choice forces would be able to preserve some form of access to abortion via the democratic process. No silly “eminations from penumbras” required. You don’t want “government intrusion into bedrooms”, get the legislatures to expressly reject all bedroom related criminality, or make a fourth amendment argument. But, as I said in the original post, just because you think you have a right to something doesn’t necessarily make it a right. If intrusion into the bedroom is as unpopular as you claim, the democratic process would make sure it is not used.
“Once again, you mistake judicial and political philosophy.”
I’m not mistaking them. I clearly set them apart.
“If Roe were overturned tomorrow, I guarantee you that pro-choice forces would be able to preserve some form of access to abortion via the democratic process.”
I’ll take that guarantee in the form of a right ot privacy, thank you.
actus,
Conservatives are going to have to deal with the fact that their position on the warren court is the extreme position out of line with how americans view their rights.
If the national consensus on the “privacy right” is as strong as you say, it is difficult to understand why any state would outlaw abortion in the first place. Politicians tend not to do things that are wildly unpopular and extremely well-publicized unless they positively have to. Indeed, from your description of the situation, it’s difficult to understand why a Constitutional “right to privacy” Amendment (the CA Constitution has one, and I suspect others do too, though I haven’t checked) shouldn’t pass easily. You don’t think so? Why ever not?
Yes, there are polls showing large-majority support for Roe, but I’ve met enough people who think that overturning Roe would ban abortion to suspect those results of being practically meaningless.
If the choice is “no abortion” vs. Roe, most people take Roe. If that’s elaborated for clarity as “no abortion for the 12-year-old raped by her father” vs. Roe, almost everyone takes Roe. But if you were to wipe out Roe and progeny and start over, and ask the people what they do want, I think you’d get an abortion right narrower than Roe‘s, but supported by a large majority, and (not so incidentally) enacted legislatively. It would differ in different states, sure, but there’s no real point in having states at all if they can’t differ.
Whereas now you have this continuous cacaphony of voices screaming that the right that everyone favors is going to be snatched from them by the Supreme Court baddies, whereas in truth the right everyone favors is not in any danger at all if that characterization of it is really accurate.
Actus-
You claim to be setting judicial and political philosohies apart, yet in the next sentence, without a hint of irony, you conflate the existence of a right to privacy in the constitution (albeit in the “eminations and penumbras” of the constitution rather than the text itself) based on the inevitability of legal abortion that would be produced by the democratic process if the courts were not involved. You don’t get to declare something as a right (once again, those would be the “certain inalienable rights” that were enshrined in the constitution) just because that something will come about as a result of democracy at work. That is the distinction between the judicial and the political.
Please explain to me how your thinking and posts are indicative of your understanding of this distinction. As with rights themselves, just because you assert it exists doesn’t mean it really is there.
Conservatives are going to have to deal with the fact that their position on the warren court is the extreme position out of line with how americans view their rights.
So in other words actus conservatives are out of the mainstream. Given the results of the elections for the last ten years, somebody better inform the electorate about this.
Its not the basis on which the rights stand, but it is the basis on which I call the republicans the extreme view. Don’t like ‘penumbras’? well, tell americans you would subject their bedrooms to government intrustion. And then tell me how extreme you are.
Given the Kelo decision I believe Americans are more concerned with Liberals taking away their bedroom!
“If the national consensus on the “privacy right” is as strong as you say, it is difficult to understand why any state would outlaw abortion in the first place.”
Believe it or not, sometimes rights of minorities are infringed by majorities. Shocking isn’t it?
“You don’t get to declare something as a right (once again, those would be the “certain inalienable rights” that were enshrined in the constitution) just because that something will come about as a result of democracy at work. That is the distinction between the judicial and the political.”
I’m not declaring anything as a right. I’m declaring who is the extremist and who is not.
“So in other words actus conservatives are out of the mainstream. Given the results of the elections for the last ten years, somebody better inform the electorate about this.”
In other words, you write something other than what I say. That conservative judicial philosphy on privacy rights jurisprudence is out of the mainstream is not the only consideration that voters weigh when choosing their elected representatives.
actus,
Believe it or not, sometimes rights of minorities are infringed by majorities. Shocking isn’t it?
Indeed. All the more reason why no one ought to define something as a “right” solely because a majority want it.
Tell me, was abortion actually already a “right” when Roe was decided? Or did it become one when the decision was announced? For that matter, was it implicitly a right ever since the Civil War Amendments (or at least since the incorporation became a common interpretive tool)? When did the text actually start to mean that? Somewhere in the Twenties? Or doesn’t it matter?
I ask because all 50 states had laws on abortion, and Roe overturned them. I wouldn’t put it past legislators to pass unconstitutional laws deliberately — happens all the time — but all of them?
Did a majority want the results of Roe in 1973? If not, I don’t see any point in arguing that a majority now want Roe. The majority now, you see, might be wrong, as the (putative, but I think correct) majority in 1973 would have been wrong in your view. What “the people” think or want is either way beside the point, because you want the issue removed from the legislative sphere whatever the people might think.
Of course, I could be wrong; maybe if there were strong evidence that most people thought Roe too broad and wanted it overturned so that they could do what they wished with new abortion legislation, you’d wholeheartedly want to see that happen. I am doubtful.
I think that liberty, privacy and autonomy have been with us for a long time, but not judicially expressed, as the enlightenment gets filtered by the slow moving thing that is jurisdprudence.
All that being said, I think it would be a boon to liberals, eventually, if Roe was overturned. This is because I think Roe actually stopped a lot of organizing in favor of democratically granted abortion rights. These sorts of organizing activities would (1) actually secure the right to abortion, which is under constant legislative attack in many parts of this country and (2) form a basis for political organizing on the left for other aspects of leftist programs.
The cost though, would be the reproductive rights of women in some backward states. Good thing I don’t have to make this decision.
actus,
I think that liberty, privacy and autonomy have been with us for a long time, but not judicially expressed, as the enlightenment gets filtered by the slow moving thing that is jurisdprudence.
You mean that every pre-1973 law about abortion was in fact always unconstitutional, but we (rather, SCOTUS) only just noticed 32 years ago? Or do you mean that forbidding abortion was always wrong, but before 1973 there was no means of legalizing it? They mean different things.
Would Roe‘s being overturned help liberals? Of course it would; it would help everyone. I’m serious. There’s any number of things that could be accomplished if things weren’t hobbled by abortion politics.
I think that it took awhile to realize the extent of the right of autonomy and privacy, as we realized just what those things meant.
“Of course it would; it would help everyone. I’m serious. There’s any number of things that could be accomplished if things weren’t hobbled by abortion politics.”
I don’t think this would be the end of abortion politics, rather I think it wouldbe the beggining of a new one where liberals would be more motivated. Do you really think that all the wingers that are against Roe’s jurisprudence would go home once it was overturned? No. They would get busy using their newfound power over women.
actus,
I think that it took awhile to realize the extent of the right of autonomy and privacy, as we realized just what those things meant.
And now that “we” have “realized just what those things meant,” “we” will promptly run off and trample them unless the SCOTUS stops us from doing so. Because whenever people belatedly realize that something is a fundamental liberty, the first thing they do is stomp on it until it’s dead.
Pardon me if I find it just a little unclear who “we” are in this argument.
What I’m curious about is whether this is an evolving-Constitution argument (“We,” or rather the subset of the people that counts as the enlightened “we,” have “realized” something, so now it is a “right,” and henceforth it goes in the Constitution), or a natural-rights argument (“Forbidding abortion is and always has been an infringement of the reproductive rights of women”). It really has to be something.
Do you really think that all the wingers that are against Roe’s jurisprudence would go home once it was overturned? No. They would get busy using their newfound power over women.
Which, since you’ve already argued that Roe is overwhelmingly popular, would be pretty negligible, yes?
It’s 2005, actus, and male politicians have discovered eventually that women do vote, and that they are a majority of the electorate in every state but one. I am not sure, though, that they’d vote on this subject as you would want them to.
Its a lot like the common law. I don’t know whether that is evolving, natural, legal realist, or what.
“Which, since you’ve already argued that Roe is overwhelmingly popular, would be pretty negligible, yes? ”
Not for a lot of women in many parts of this country. And not due to the fact that we’re not quite having a general election on Roe’s jurisprudence, but specific elections by elected representatives where a majority is setting the rights of a minority.
I do recognize that the jurisprudence of the christian right is in the minority, but I also recognize that they are much more electorall organized than the left. And I do expect that electoral organization to deliver, if not nationally, then in many localities.
actus,
Not for a lot of women in many parts of this country. And not due to the fact that we’re not quite having a general election on Roe’s jurisprudence, but specific elections by elected representatives where a majority is setting the rights of a minority.
No, an extremely small minority, called “state legislators,” will be “setting,” as you call it, the rights of the very large majority, except in such states (like, as I mentioned already, CA) as already have a Constitutional privacy right.
Fortunately for all concerned, this extremely small minority has constituents, and is also concerned about staying in its seats. Not terribly concerned hitherto, but it’s easy to run on an anti-abortion program in a solidly Republican district if Roe‘s there, and quite something else if it isn’t. If voters want something as badly as everyone everywhere (except “in many parts of this country”?) wants this, they’ll get it. If the NRA can do it, why can’t you? There are a lot more women than there are gun owners of either sex.
I don’t quite understand the common-law aspect of this. The common law is, well, common, reasoning closely from what’s already there to fill in a small gap somewhere. I don’t think there’s a reasonable line from the “emanations and penumbras” to Pierce &c., then through Griswold to Roe and beyond, that anyone could construe as being necessary to fill in the gaps. There weren’t any gaps, only more assumptions of power.
John, we two have well & truly hijacked the thread. Sorry.
‘Fortunately for all concerned, this extremely small minority has constituents, and is also concerned about staying in its seats’
And a minority of these constituents are affected by each marginal change in abortion access. But that is a very clever inversion to take our representative system of government and turn every legislative act into that of minority ruling a majority.
“If the NRA can do it, why can’t you?”
Thats what i’m predicting will eventually happen. But it won’t happen everywhere, and in todays climate, the first steps will be backwards, not forwards, for women’s rights.
But in general, I think that the more that stands in the way of government intrusion in our lives the better. Democratic force and constitutional rules are not exclusive ways of protecting privacy and autonomy from government overreach.