I will happily defer to Patterico for his near-daily demolitions of the Los Angeles Times. He's kicked enough ass and taken enough names over there to be noticed. There's that. But then he'll rattle off some stuff like this that just makes you cringe (emphasis mine):
I take a backseat to no-one in my desire to see the stain of Roe removed from the Court’s set of constitutional precedents. This is primarily a concern for the integrity of constitutional jurisprudence, rather than a simple desire to see an end to abortion on demand. While I think reasonable people can disagree as to whether there should be abortion rights under some circumstances, I don’t think that rational and informed observers can deny two facts.Well, before we get to those two facts, let's share a few moments of lit crit, which, inevitably, involves the use of pop psychology.
First, if you think that Roe is a "stain" upon the Constitution, then you have to be lying when you say that it's the integrity of the Constitution that is your primary concern, and not the issue of abortion itself. This is further evidenced by the use of the phrase "abortion on demand," which is indisputably the language of the zealot.
Second, the idea that "reasonable people can disagree as to whether there should be abortion rights under some circumstances" is one of those insincere concessions that makes the listener's buttocks clench up a little. You just know that Patterico didn't want to have to include such a superfluity, but thought he'd so so, anyway, just to mimic the tone of dispassion.
(The fact is that, if abortion is wrong, then no agency or mitigating factor can make it less wrong. "Some" circumstances? To commit your party to overturning Roe through the appointment of amenable justices is one hell of a political risk to take if you do not believe that the right to an abortion ought to absolutely be revoked. You'd better get straight on that, sir, because it makes little sense to only go half way.)
So, Patterico continues:
First, Roe was an act of pure judicial legislation by judges who were more concerned with their policy preferences than with properly interpreting the Constitution. This conclusion is supported by the structure of the decision, which created a trimester framework out of thin air, as well as by historical accounts of how individual Justices came to their decisions [...]. The Court’s jurisprudence suffers every day that it continues to defend its decision to resolve an “intensely divisive controversy” without constitutional authority to do so.The Constitution of the United States is a remarkable document ---a moment of genius in the life of Political Man. But it is not a purposefully omniscient instrument. It has no agenda in itself. And on that non-existent agenda is this idea that the Constitution exists to be interpreted narrowly or literally at all times.
One reason we know this is that the Constitution was ratified as a document thats framers knew was incomplete even as it was submitted. It was understood then that it would have to be amended. That's what the Bill of Rights is: an acknowledgement that the structure of the Government is one thing but that the rights of the people must admit of being amended and expanded as the life of the Republic progresses.
It is absurd to think that the authority or integrity of the Supreme Court of the United States is somehow compromised by Roe. In fact, just as with Brown and Lawrence, the Supreme Court has a societal obligation to ensure the people of the United States of their most basic rights. The right of a woman to choose whether she will be a mother is unquestionably a human right. The Supreme Court has honored that ---and John Roberts has a reason to let precedent stand.
Second, the constitutionalization of abortion law by Roe and its progeny has led to a set of abortion rights far more expansive than would otherwise exist. The horror of partial-birth abortion offends the majority of Americans, who also support reasonable restrictions on abortion that have been struck down by the courts, such as spousal notification laws of the sort upheld by Judge Alito in his Casey dissent."Constitutionalization," as Patterico uses it, means the trumping of states' rights. Which is a rather pejorative view to take of the Constitution for someone who professes to be concerned "primarily" with its integrity. But maybe he can also explain why it's so necessary to pass a Constitutional ban on gay marriage. Does he not trust the judgement of the several states to establish their own marital law? If the Right is going to resort to the Constitution of the United States for that purpose, then how can they deny the legitimacy of the pro-choice movement obtaining its own protections through that same instrument?
So, I fully agree with Robert Bork: Roe must be overruled. The only question is how. And with the makeup of the Court we have now, my guess is that an incrementalist approach will be required.Well. At least Patterico isn't concealing his true opinion of court-as-legislature with this! He wants it all overturned, brick by brick.
And what do you get out of this again? The guaranteed destruction of the Republican Party? Smooth move, Ex-Lax.
Posted by Toby Petzold
at 9:34 PM CST
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Updated: Monday, 7 November 2005 9:39 PM CST
Updated: Monday, 7 November 2005 9:39 PM CST