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In today's WaPo, Charles Krauthammer relies on Robert Bork's critique of Roe v. Wade to defend Rudy Giuliani's statement on abortion. So what else is new? I know. It's just that I want to bring attention to the talking points which I feel have been neglected.

Krauthammer starts off by saying:

Legalizing abortion by judicial fiat ( Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action.

The opposite is not true; people don't stay home when they haven't been deprived of "resort to legislative action." I've seen no reason to believe anyone's upset that Roe v. Wade had "short-circuited the democratic process. I dare say that this meme is an attempt to guilt-trip Liberals, much like Clarence Thomas's complaining about a "high-tech lynching."

Democrats are pro-choice and have an abortion litmus test for judges they would nominate to the Supreme Court. Giuliani is pro-choice but has no such litmus test. The key phrase is "strict constructionist judge." On judicial issues, he believes in "strict constructionism," the conservative view that we don't want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs.

This usage of "penumbral emanations" is the key. The 4th Amendment speaks of a "Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..." Now, do we have a right to be secure against searches and seizures which are reasonable but which enforce laws that are none of the government's business? To connect to the astonomical term, unreasonable searches and seizures" are the umbra; they're prohibited by the Constitution itself. A penumbra would be a right which is not specified in the Constitution, but which is closely related to one which is.

I think the Founding Fathers were clear when they wrote the 9th Amendment: "The enumeration in the Constitution, of certain rights shall not be construed to deny others retained by the people." We have a new right until the legislature, with due deliberation takes it away. Krauthammer wants us to think that we don't have the right until the Washington insiders give it to us.

I will also say that the "litmus test" part is bogus. Conservatives have just as much of an agenda as Liberals. If this were not so, Krauthammer would not have pronounced it a fraud to tell the truth about the filibuster against Abe Fortas during the debate over judicial filibusters.

And there is precedent for... accepting even bad constitutional rulings after the passage of time. Chief Justice William Rehnquist for years oppos[ed] the original 1966 Miranda ruling as "legislating from the bench" but uph[eld] it in 2000 on the grounds that it had become so ingrained in American life that its precedential authority trumped its bastard constitutional origins.

Here, Krauthammer shows his contempt for existing rights by pronouncing a reading of the 5th Amendment to be "bastard Constitutional origins."

He also bafflegabs us about the recent "partial birth abortion" decision;

The only reason the court upheld the ban is that an alternative (far more commonly used) to this mid-to-late-term procedure is readily available. Hence no "undue burden" on the woman. Hence it respects the confines of existing abortion jurisprudence.

To believe this, we must assume that Justice Kennedy knows more about the state of medical technology than the practitioners who are on the front line. The decision also fails the test of "Judicial activism" in that Kennedy can't justify his desire to protect women who choose abortion from themselves based on any previous decision that deems such women are not moral agents.

Krauthammer wants to blame the "activism" of the Warren and early Burger courts for the unpopularity of Abortion rights, and indeed any right which went into any of the controversial decisions of the time. He accuses us of tangling with other issues when we're the ones trying to straighten out the right to privacy from a period of nullification.

Originally posted to Judge Moonbox on Fri May 11, 2007 at 08:45 PM PDT.

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Comment Preferences

  •  "People take to the streets"... (3+ / 0-)

    Oh, so bomobing clinics and kiling doctors is ok.

    I'll remember that the next time I protest.

  •  to be fair, Roe did rely on the "penumbra" (0+ / 0-)

    Roe relies on the ruling in Griswold that the "penumbra" of the Bill of Rights includes a "right to privacy".

    I'm somewhat torn on the legal issues myself.  The basic question is whether a long line of Supreme Court jurisprudence, which finds such rights un-explicitly dormant in the Bill of Rights, is legitimate or an exercise in judicial activism. It's worth noting that these rights are sometimes ones we like (abortion in the first trimester), while other times they're ones that favor conservative causes (a "right to contract" was used to invalidate many early labor laws).

    "See a world of tanks, ruled by a world of banks." —Sol Invictus

    by Delirium on Fri May 11, 2007 at 09:05:37 PM PDT

    •  9th Amendment. (2+ / 0-)
      Recommended by:
      blueoasis, dragoneyes

      I'm somewhat torn on the legal issues myself.  The basic question is whether a long line of Supreme Court jurisprudence, which finds such rights un-explicitly dormant in the Bill of Rights, is legitimate or an exercise in judicial activism. It's worth noting that these rights are sometimes ones we like (abortion in the first trimester), while other times they're ones that favor conservative causes (a "right to contract" was used to invalidate many early labor laws).

      That's why I referred to the 9th Amendment. The question, as I've said, is whether we have a right until the authorities take it away or not.

      Not every "right" will need an amendment to curb its excess. Here's a question that never occured to the Founding Fathers: Do we have a right to drive motor vehicles. A legislature acting with due deliberation may say that vehicles are inherently dangerous; therefore driving is a privilege the state may take away from the incompetent. What I'm calling "Borkum" is the attitude that "the Constitution doesn't say it; therefore the right doesn't exist."

      With the "right to contract," a legislature acting with due deliberation may find the rights of the workers to bargain collectively outweighs the rights of the "lone wolves" to refrain from collective bargains.

      Poster child for the "If I'm so Smart, Why Ain't I Rich" Syndrome.

      by Judge Moonbox on Fri May 11, 2007 at 09:25:20 PM PDT

      [ Parent ]

  •  Bush-baby Guoliani is now (1+ / 0-)
    Recommended by:
    Judge Moonbox

    the "maverick" Republican.  Wonder if McCain wanted this way or got out-maneuvered?

    •  Vote for "outmaneuvered." (0+ / 0-)

      Bush-baby Guoliani is now
      the "maverick" Republican.  Wonder if McCain wanted this way or got out-maneuvered?

      I really think that McCain wanted it both ways: he wanted the Repubs who were looking for a maverick to think of his 2000 run, but he also wanted the Shrubbery to think he was one of them. In the end, he couldn't be in two places at the same time, so that left the "Maverick" position to Rudy.

      Poster child for the "If I'm so Smart, Why Ain't I Rich" Syndrome.

      by Judge Moonbox on Sat May 12, 2007 at 06:38:32 AM PDT

      [ Parent ]

  •  Guiliani is the police state candidate Neocons (1+ / 0-)
    Recommended by:
    Judge Moonbox

    love. Hence, the Krauthammer love for Dr. G., as twisted as it is, begins to make sense. Guiliani today laid on the '9-11 is too important' so shut up about abortion line on the Rethug voters.

    Overlook my position on abortion, and I'll give you security (take away your freedoms that you are too stupid to use while you feel all macho and nationalistic and self righteous) and 'preserve the free market economy' (make you Rethug morons think you'll prosper endlessly by letting corporations do whatever they want). This selling job makes Neocons have orgasms over such a candidate.

    "Children in the U.S. are not only detained, but often... in facilities that routinely fail ... international and domestic standards." --Amnesty International

    by doinaheckuvanutjob on Sat May 12, 2007 at 02:28:31 AM PDT

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