by publius
I want to add my two cents on McArdle’s post as well -- some of which reinforces Hilzoy's response.
First, the most significant error she makes is the assumption that “the law” was “powerless” here. The fact that “the law” is different from what you might prefer is conceptually distinct from saying it’s “powerless.” Right now, we let the Supreme Court remove several issues out of the legislative process – that’s the nature of a constitutional right. You may agree or disagree with Roe on the merits, but it’s the law. And for the record, the privacy right underlying Roe (1) extends much broader than abortion, (2) has a century of precedent behind it (beginning with Pierce and Meyer), and (3) enjoys widespread support from the public.
A better example of when the law was “powerless” is the Reconstruction and Jim Crow era South. There, you had laws and amendments on the books protecting civil rights. These established rights were widely ignored and invalidated by extralegal violence. In these types of circumstances, violence may well be morally justified. In fact, I think it is.
But that’s a completely different universe from an established, popular constitutional right that has been reaffirmed for decades by Republican-appointed Justices.
If, however, the argument is merely that “the law as it actually exists allows some great moral outrage to occur,” then it still in no way follows that extralegal violence is morally justified (as Hilzoy noted). There are lots of moral outrages the law currently allows – the death penalty, the Iraq war, the freedom to let Glenn Beck speak. The fact that these outrages exist doesn’t justify the specific tactic of violence to oppose them – particularly when the political process (which includes the Constitution and judicial appointment process) is available.
Next, McArdle brings out a slavery analogy:
That could be true, of course. But here’s the thing about that type of analogy – it justifies anything. If, for instance, people one day look at the horror of integrated schools the same way we look at slavery, then George Wallace will be a national hero. If future generations think internment camps are a great moral necessity, then Michelle Malkin will be hailed as a moral visionary.
It’s a premise that can’t really be refuted. But it’s also a dangerous premise. Because this type of argument can be used to justify anything, it is in fact used to justify anything. And as a matter of probability, the particular outrage a person subjectively picks will likely not be morally equivalent to slavery. (Or if you prefer, substitute the Holocaust for slavery).
Next, I don’t really understand the Iraq/”bitch slap” analogy – maybe it's just an example of visceral contempt of liberals spilling out. But anyway – the purpose of passing new restrictive laws against these “fringes” isn’t retribution – or a desire to prove how powerful we are. It’s to prevent political violence aimed at undermining an established constitutional right (as Hilzoy also noted).
Whether you agree with it or not, we as a country have decided to protect a woman’s right to be free from forced childbirth. Similarly, we as a country made a commitment to protect a racial minority’s civil rights. The violence we saw yesterday – just like in the “Redemption” period – is aimed quite directly at eliminating those rights. Therefore, it makes complete sense that society would take additional and more punitive steps to punish this type of behavior. (It's also the logic of hate crime laws -- the badness of the act extends beyond the violence itself).
If it were a random murder, it would be different. But it’s not.
So first we get a lot of rationalizing from the right in support of torture.
Are we going to get a lot of rationalizing now in support of murder?
And Ron Dreher thinks conservatives are fighting barbarism!
Posted by: wonkie | June 01, 2009 at 06:07 PM
"Whether you agree with it or not, we as a country have decided to protect a woman’s right to be free from forced childbirth. Similarly, we as a country made a commitment to protect a racial minority’s civil rights."
Right on the second part--a civil war, 3 constitutional amendments, a century of conflict, court decisions and much legislation--wrong on the first: a 7-2 Supreme Court decision is not "we". "We" didn't do anything, seven justices did, effectively disenfranchising every American voter on an issue that depends on penumbras for its marginal constitutional support. Publius goes along with this because he likes the result. Turn the tables and judicial activism won't find the same warm reception.
Posted by: mckinneytexas | June 01, 2009 at 06:20 PM
I thought most people thought John Brown was a crazy murdering fanatic, regardless of the morality of slavery. Are people really morally conflicted about him?
Posted by: Scott P. | June 01, 2009 at 06:36 PM
"We" didn't do anything, seven justices did ...
Yeah, but they were "our" justices. Just like the five justices who selected "our" 43rd president were "our" justices.
Make up your mind what "we" means, mckinneytexas. I am perfectly content if the way you define the word means that you and I need not be part of the same "we".
--TP
Posted by: Tony P. | June 01, 2009 at 06:37 PM
"We" didn't do anything, seven justices did, effectively disenfranchising every American voter on an issue that depends on penumbras for its marginal constitutional support.
While meantime, about 800-900 thousand American voters (or soon-to-be voters) each year vote with their feet for their right to choose abortion.
Granted in a country of 300 million people, even a million women a year is a marginal constituency. But it's curious that you complain that American voters have been disenfranchised of their right to decide by majority vote what each one of those individual Americans ought to get to do with her uterus. Do you call a constituency vote about what to do with your liver?
Posted by: Jesurgislac | June 01, 2009 at 06:38 PM
Well, according to the civics books it is.
And sorry....I DESPISE the term "judicial activism", particularly in the case of individual civil rights. Either this is a civil right or it isn't. If it is, YOU HAVE NO BUSINESS TALKING ABOUT DISENFRANCHISEMENT.
Posted by: gwangung | June 01, 2009 at 06:41 PM
"'We' didn't do anything, seven justices did...."
So you oppose, in general, the American system of government in which the Supreme Court rules on what is and isn't constitutional, subject to overruling by constitutional amendment?
What would be your preferred system of government?
"Turn the tables and judicial activism won't find the same warm reception."
I don't advocate a different system of government, myself: why do you hate America, mckinneytexas?
Posted by: Gary Farber | June 01, 2009 at 06:42 PM
Honest question, as long as we are discussing Jim Crow and Civil Rights:Would the level & kinds of harrassment(sic?) and intimidation that Dr Tiller regularly received be tolerated if directed toward a black voter or election official in the Deep South?
Are there speech-acts covered under the VRA as intimidation and suppression? I wonder if saying:"If you vote, we are going to get you." is illegal, and maybe something like "Black voting is just morally wrong" in specific circumstances where it might suppress and intimidate?
On spending time at Wiki, I am not even sure the above kinds of voter intimidation are actually illegal. They should be, as should any speech-act with the purpose or effect of preventing someone from exercising their constitutional rights under circumstances where violent suppression is common.
Anti-choice rhetoric, clearly associated with anti-choice violence, should be a prosecutable hate-crime.
Posted by: bob mcmanus | June 01, 2009 at 06:48 PM
I assume, mckinneytexas, you also oppose a right to birth control, and Griswold v. Connecticut, with the same right to privacy, and since you oppose the Supreme Court making any rulings at all on what is and isn't constitutional law, that you oppose Brown v. Board of Education, along with all other laws struck down by the Supreme Court, and rights declared by the Supreme Court?
You, I take it, oppose the right to counsel, the right to speak to counsel, the right to be assigned counsel, oppose the results of illegal searches and seizures being inadmissible in court, oppose Heller, oppose a right of free contract being found in the penumbra of the Constitution, oppose Loving v. Virginia, oppose sex-based discrimination being inherently suspect (Frontiero v. Richardson), and oppose the right to refuse medical treatment, oppose Congress being forbidden from banning guns near schools (United States v. Lopez), among other Court decisions?
Just checking.
Posted by: Gary Farber | June 01, 2009 at 06:55 PM
Actually Scott, there's John Brown had then and has today plenty of defenders, apologists, and hagiographers.
Posted by: Point | June 01, 2009 at 07:00 PM
"I thought most people thought John Brown was a crazy murdering fanatic, regardless of the morality of slavery."
That's my view.
Posted by: Gary Farber | June 01, 2009 at 07:05 PM
"Next, I don’t really understand the Iraq/”bitch slap” analogy – maybe it's just an example of visceral contempt of liberals spilling out."
Don't be so dismissive. McArdle is in the process of building a long and illustrious career in punditry based on visceral contempt of liberals (and precious little else).
Posted by: Uncle Kvetch | June 01, 2009 at 07:24 PM
Posthumous View of John Brown's Character ...Wiki
Some quotes, all op cit:
"As the U.S. distanced itself from the cause of slavery and "bayonet rule" in the South, the historical view of Brown declined in a manner parallel with the demise of Reconstruction"
"...the more unapologetically sympathetic fictional portrayal of Brown found in Russell Banks's 1998 "Cloudsplitter". The shift to an appreciative perspective on Brown moves many white historians toward the view long held by black scholars such as W. E. B. DuBois, Benjamin Quarles, and Lerone Bennett Jr."
"The current trend among some writers to portray Brown as another Timothy Mc Veigh or Osama bin Laden may still reflect the same bias that Fried discussed a generation ago. DeCaro likewise complains of writers taking "unstudied liberties" and concludes that in the 20th century alone, "poisonous portrayals [of Brown were] so prevalent as virtually to have formed one long screed of hyperbole and sarcasm in the name of historical narrative."[24]"
"According to his autobiography, when he was asked if white people could join his black nationalist Organization of Afro-American Unity, Malcolm X replied "maybe John Brown"."
Posted by: bob mcmanus | June 01, 2009 at 07:37 PM
Dubois at Harper's Ferry in 1906
Dubois went on to write a classic biography of John Brown, published in 1909.
(PS:Someone who thinks I quoted out of context and therefore misleadingly might check the penultimate and climactic paragraph:"...The Slav is rising in his might, the yellow millions are tasting liberty..." Looks to me like Dubois is referring to the 1905 Russian Revolution, and the Boxer Rebellion. Perhaps his attitude toward violence is complex.)
Posted by: bob mcmanus | June 01, 2009 at 07:57 PM
Uncle Kvetch: "McArdle is in the process of building a long and illustrious career in punditry based on visceral contempt of liberals (and precious little else)."
Too bad she didn't pick a less-crowded field: there may soon be nothing left for her...
Posted by: chmood | June 01, 2009 at 08:09 PM
“Make up your mind what "we" means, mckinneytexas. I am perfectly content if the way you define the word means that you and I need not be part of the same "we".”
“We” means a decision by democratic vote or other collective manifestation of majority will. “We” did not end the Florida recount, five justices did. You and I are definitely part of ‘we’ and we, as in ‘you’ and ‘I’, routinely cancel each other’s vote.
“Either this is a civil right or it isn't. If it is, YOU HAVE NO BUSINESS TALKING ABOUT DISENFRANCHISEMENT.”
Correct, sort of. If the right to elective abortion is a fundamental civil right, it is not subject to a vote; however, the operative words are ‘if’ and ‘fundamental’. Not every civil right is fundamental nor is every civil right inviolate. Further, most of our civil rights are spelled out in or reasonably inferable from the text of the Constitution and thus were adopted by the constitutional process. See below for a post I did distinguishing Roe from the line of right to privacy cases. I do not think elective abortion is a fundamental civil right, for a variety of reasons, including those stated below.
“So you oppose, in general, the American system of government in which the Supreme Court rules on what is and isn't constitutional, subject to overruling by constitutional amendment?
* * *
I don't advocate a different system of government, myself: why do you hate America, mckinneytexas?”
Gary, by your logic, any disagreement with any Supreme Court decision--and by extension of logic, any act of congress or executive order—equates to hating America. So, since I don’t agree with a lot high court decisions, laws passed by congress or executive order, it follows that I hate my country. You win. I turn over my king.
Mckinneytexas on Roe v Wade:
The Constitution is not an exhaustive list of rights nor is it an endless cornucopia of rights to be meted out by the happenstance of a bare one-justice majority. The ‘right to privacy’ emanates from the 14th Amendment, and within limits, is a sound constitutional doctrine: state limitations on individual liberty can only be justified by a compelling state interest, weighing the liberty in question against the state’s compelling interest with the bias in favor of liberty. By its very nature, the process of evaluative comparison implies a sliding scale which, at one end, the state has a compelling interest and the individual’s liberty must give way and at the other end, the state has virtually no interest and the individual’s rights prevail. In lay person’s terms, an individual’s rights end when they encroach on another individual’s freedom/privacy. In the cases of interracial marriage, oral sex, contraceptives, etc., there was no demonstrable state interest, much less a compelling state interest, and certainly no encroachment on another’s rights or privacy. What distinguishes most if not all of the right to privacy cases from Roe is that only consenting adults, for the most part, are involved. Some few cases attempt to mark the line between a parent’s rights to raise a child against the state’s interest in education or its police power—these are usually closer cases and generally produce a polar shift between liberals and conservatives, liberals generally being more state-intrusive in the parenting business and conservatives being more insular. But, for the most part, the right vindicated is a right without consequence to any other person and is almost always exercised primarily in private.
Roe, on the other hand, ends a pregnancy and thus ends, if not a human life, at least a living organism that would be a viable human less than half a year from conception. Where the vindication of one person’s rights so irrevocably and profoundly affects the rights of another person, or potential person, then judicial fiat is insufficient in a democracy to decide that right.
Posted by: mckinneytexas | June 01, 2009 at 08:13 PM
Man, if only there were a mechanism to amend the constitution and have such changes be beyond the reach of the Supreme Court......
Posted by: Davebo | June 01, 2009 at 08:19 PM
Turn the tables and judicial activism won't find the same warm reception.
Posted by: mckinneytexas
A great example of why, if texas secedes, they won't be missed a lick...
Posted by: Woody | June 01, 2009 at 08:40 PM
Actually Scott, there's John Brown had then and has today plenty of defenders, apologists, and hagiographers.
Oh, I am well aware of that. I was referencing today more than the past. Is that view really in the majority today? Among historians?
Posted by: Scott P. | June 01, 2009 at 09:27 PM
I (really) don't know about a majority, but as bob mcmanus illustrates, their a real voice in the historical discussions.
Posted by: Point | June 01, 2009 at 09:33 PM
It shouldn't be a surprise that there are people who admire (or at least do not disdain) John Brown. The idea that an organized and armed citizenry can and should violently revolt against oppressive government is one with a long history in the United States, as is the idea that a certain amount of innocent casualties are the inevitable and acceptable cost of legitimate violence.
Posted by: Patrick | June 01, 2009 at 09:48 PM
I still don't believe most, if not all, of the anti-choice crowd, knows what a person is....and this is the problem.
Their willingness to equivocate chattel-slavery with the destruction of zygotes and cells, plus their inherent willingness to engage in the mass death of people in other lands, whenever they are scared, all leaves me questioning their philosophical basis for understanding what “persons” is.
Posted by: someotherdude | June 01, 2009 at 10:14 PM
well, my two cents is that it is kind of becoming clear that people-many people, and I includeme are beginning to see that 7 or 8 month old babies aren't just tumors, to be removed and snuffed out at the whim of a woman and her doctor. That's why a majority of Americans want to put limitations on late term abortions. You don't have to support killing Tiller- I don't- to wonder if killing 7 or 8 month fetuses is arguably a form of homicide. Hilzoy and publius have pretty much side stepped that argument, but its kind of fundamental. Even Roe v Wade allows for restrictions on late term abortions, although again many here would deny this.
Whether you agree with it or not, we as a country have decided to protect a woman’s right to be free from forced childbirth.
No one is in favor of forcing women to have children. Thats a helluva a long way from arguing for restrictions on late term abortions. But even if you accept your blatantly unfair way of couching the right to abortion, we have not agreed that this right is absolute. The Supreme Court didn't say it, and the majority of people don't agree that it is an absolute right.
Similarly, we as a country made a commitment to protect a racial minority’s civil rights
After people like John Brown led insurrections and killed people. If you don't think that we are at that point in the abortion struggle, well, I agree with you. But I'm sure that the vast majority of white Americans in 1859 didn't agree with John Brown that slavery was worth killing over. A few years later, opinions changed. That historical analogy does make you wonder...
Posted by: stonetools | June 01, 2009 at 10:17 PM
"Gary, by your logic, any disagreement with any Supreme Court decision--and by extension of logic, any act of congress or executive order—equates to hating America."
No. You're saying that Supreme Court decisions aren't one of the three equal parts of the U.S. government. You're saying that "we" means only "a decision by democratic vote or other collective manifestation of majority will" by either Congress or the popular vote, and that only such votes are legitimate decisions by the U.S. government. You're therefore saying that Supreme Court decisions are illegitimate. If you're not saying that, do by all means say you're not saying that.
You're saying that Supreme Court decisions aren't legitimately "we," and that you don't regard them as such. If you're not saying that, do by all means say you're not saying that.
Which is to say, to repeat, you're rejecting the legitimacy of the Supreme Court as one of the three parts of "we," and our government.
Which is to say that you reject the structure and legitimacy of the U.S. government. This is an extremely radical view.
If I have this wrong, do please tell me where.
Simply disagreeing with some law of Congress, or presidential act, or Supreme Court disagreement, is one thing: saying the very concept of their acting is illegitimate is something else entirely. You're specifically claiming that if Marbury v. Madison isn't illegitimate, that it isn't legitimate when... you don't like the decision? Or what?
Either the Supreme Court is just as much a legitimate part of our government as Congress and the president are, or it isn't. Either it has an equal constitutional role to play with the other two branches, or it doesn't. Either it's as much "we" as the other two parts of government, or it isn't. These are all inseparable restatements of the same proposition: do you reject this proposition, or do you in fact not mean what you've said, and you do affirm that the Supreme Court is a legitimate third of our government, and as much "we" as the other two parts?
"Judicial fiat" is, of course, just an attempt at rhetorically stacking the deck to beg the question. If you and yours disagree with a Supreme Court decision, that's your right. If you dislike it enough, you're free to overturn it with enough votes, by passing a Constitutional amendment. Meantime, either you regard our structure of government as legitimate, or you don't.
"The Constitution is not an exhaustive list of rights"
That's exactly why the Ninth Amendment was written: to prevent people from claiming that if a right isn't specified in the constitution, that it isn't a right of the people. This is exactly why a number of the founders opposed a Bill of Rights in the first place.
Which part of this is unclear? "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"? What do you think it means?
On John Brown, I'm all for his antislavery, abolitionist, views and activities. Except when it got 'round to stuff like "Sometime after 10:00 pm May 24, 1856, it is suspected they took five pro-slavery settlers – James Doyle, William Doyle, Drury Doyle, Allen Wilkinson, and William Sherman – from their cabins on Pottawatomie Creek and hacked them to death with broadswords."
Or this: "The baggage master, Hayward Shepherd, became the first casualty of John Brown's war against slavery. Ironically, Shepherd was a free black man. Two of the hostages' slaves also died in the raid."
Posted by: Gary Farber | June 01, 2009 at 10:28 PM
"Roe, on the other hand, ends a pregnancy and thus ends, if not a human life, at least a living organism that would be a viable human less than half a year from conception. Where the vindication of one person’s rights so irrevocably and profoundly affects the rights of another person, or potential person, then judicial fiat is insufficient in a democracy to decide that right."
First, thanks for a pretty thoughtful analysis of the issue.
Second, "if not a human life" is kind of the crux of the issue. Your point about contending rights is apt, but only if all parties are actually people, and in particular people under the law.
When does egg + sperm become human being?
And once you've answered that, what you've accomplished is establishing the point at which the rights of the fetus should be *considered*. The mother has rights as well.
Third, why is judicial fiat insufficient to judge between the contending rights of different populations in the society? That would seem to be exactly within the purview of an appellate court.
Posted by: russell | June 01, 2009 at 10:30 PM
"Hilzoy and publius have pretty much side stepped that argument, but its kind of fundamental."
Actually I think hilzoy at least has addressed it.
"Except when it got 'round to stuff like..."
Thank you.
My two cents -- I don't care which side of the argument you're on, if you go gunning people down to achieve your goal, you're on the wrong side.
Posted by: russell | June 01, 2009 at 10:36 PM
tossing in Glenn Beck in there really gives the guy more credit than he deserves; besides, he is great fodder for Steven Colbert.
Posted by: Joe | June 01, 2009 at 10:37 PM
... 7 or 8 month old babies aren't just tumors, to be removed and snuffed out at the whim of a woman and her doctor ...
I agree. And people should not be allowed to undergo chemotherapy on a "whim", either. I'm sure there's just as much of that going about as there is whimsical late-stage abortion.
--TP
Posted by: Tony P. | June 01, 2009 at 10:44 PM
This is only somewhat topical, but I'm a bit surprised I haven't seen more coverage of this news story
I do wonder whether this murderer was at all inspired by the apologias being offered up to the murderer of Dr. Tiller.
Posted by: Warren Terra | June 01, 2009 at 10:47 PM
It may interest you to know that people have actually thought hard about this stuff prior to your doing so. You might even find it interesting to go back and read the Roe v Wade decision, from which I will pull a rather relevant part Blackmun's summary in his majority opinion:
You might have found the time during the last 35 years to read the decision at the heart of a debate that you seem to think has never thought to confront any of these issues.
Posted by: Warren Terra | June 01, 2009 at 11:00 PM
Thanks, warren, you beat me to it.
Mckinneytexas, you make a nuanced case, but it still comes down to saying that when the Court stretches further than you, personally, are comfortable with, it is too far. Besides, do you honestly think the problem most anti-choicers have with Roe is that it took the decision out of legislative hands? If so, why are so many so angry even in states where the legislature voted to allow abortion more freely than the Court demanded? It's about the outcome, not the process.
And yes, I liked "judicial activism" a lot less when my ox was gored, or rather when my Gore was axed. But even though I am convinced that Bush v. Gore was bad law in which the Court went beyond its powers, the constitution, and its proper role in a democracy, and that it resulted in hundreds of thousands of unnecessary deaths, economic crisis, and environmental setbacks that may well literally destroy our entire species, I did not advocate murdering the participants or beneficiaries.
There's a big difference between a cool reception, and murdering the winning side's representative.
Posted by: The Crafty Trilobite | June 01, 2009 at 11:32 PM
"well, my two cents is that it is kind of becoming clear that people-many people, and I includeme are beginning to see that 7 or 8 month old babies aren't just tumors, to be removed and snuffed out at the whim of a woman and her doctor. That's why a majority of Americans want to put limitations on late term abortions. You don't have to support killing Tiller- I don't- to wonder if killing 7 or 8 month fetuses is arguably a form of homicide." Stonetools
Nonsense. You obviously don't know anything about late term abortions. Learn first. Have an opinion later.
Posted by: wonkie | June 01, 2009 at 11:33 PM
Wonkie and Warren Terra are all correct that Stonetools is either completely ignorant of the subject or is intentionally misrepresenting it.
Also, I have a question for the anti-abortion people here, and the "concerned" pro-choicers. Forgive the argument by analogy, I know this sometimes just makes things more confusing, but comparing an abortion ban to forced organ donation seems apt to me. I assume you don't support requiring that for, say, kidneys, but why not?
Posted by: Cyrus | June 02, 2009 at 09:48 AM
In response to Crafty and Warren (then I am out for the week), several points.
1. Regardless of where one's leanings take them, we live in a democracy. A careful study of court decisions will show that the courts decline many issues on the grounds of their being 'political questions', to be decided by the legislatures or plebiscites or whatever other democratic process there might be.
2. I cannot anymore answer to your satisfaction the question of when, precisely, life begins than I can find a universally satisfactory solution to any of the major issues of the day. What I can demonstrate objectively is that if left alone, a fetus will develop into a recognizably human organism in mere weeks and will be objectively viable in less than 6 months. To me, this means a lot.
3. Yes, the mother has rights, and the father too. However, rights are not independent of obligations. The finality of abortion seems to me a greater burden than 9 months of gestation. Fifty years ago and beyond, when single motherhood was an anathema and when pregnancy was for many if not most women who could not arrange to be quickly married a grinding and unbearable social and emotional burden, the 9 month hosting was far more of an intrusion than it is today.
4. That society dishonored and mistreated women who became pregnant back then, forcing illegal abortions out of desperation, shame and fear is not an argument for allowing abortion today when (a) proponents of choice are generally very accepting of single motherhood and (b) pro-lifers have had to adjust dramatically their views on marriage and sex and have had to be open--consistently open--to young women electing the carry to term even outside marriage.
5. There is no perfect system for resolving divergent differences. The courts can parse contracts and constitutions. Sometimes they are right and sometimes they are wrong. An indicator of when a court has gotten too far out in front of the people is when, forty years later, the decision continues, as does Roe, to be so hotly debated yet without a meaningful remedy for those who do not accept the high court's judgment.
6. Compare, for example, Roe with Miranda. Sure, people like Hannity diss Miranda, but most Americans go along with the program and even if it gives a criminal here or there a 'get out of jail free' card, the whole idea of accused people having lawyers and the police getting search warrants is widely viewed as legitimate.
7. Even comparisons between Roe and Gore go only so far. Gore was a one shot deal. Presidential terms are for four years and then everyone gets a 'do over.' Not so with Roe. It will last until a court can be packed to achieve that result, and in the meantime, purely elective abortions occur hundreds of thousands of times every year. If you accept the premise that people like me believe terminating a pregnancy is the ending of a life that seems human in every respect except that it is inside its mother's womb, you might then understand why, at a minimum, we would like a vote on this very, very profound issue.
8. There will always be those, on either side of the question, who will have it their way or no way at all. I can't fix that.
Posted by: mckinneytexas | June 02, 2009 at 09:56 AM
The idea that an organized and armed citizenry can and should violently revolt against oppressive government is one with a long history in the United States, as is the idea that a certain amount of innocent casualties are the inevitable and acceptable cost of legitimate violence.
Yes, well if John Brown had actually managed to raise and arm a vast slave insurrection, then I think my views on him might be described as 'conflicted'. In the actual fact, however, as Gary pointed out, John Brown in his raid killed more African-Americans than he freed from slavery, plus a whole lot of other people. It had approximately zero chance of success. So regardless of what I might think of his motives, it was stupid, pointless and wrong.
Posted by: Scott P. | June 02, 2009 at 10:04 AM
As a matter of fact, I DID read the decision, which is why I said that the right to a third term abortion is not absolute.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
That language does make it clear that we can restrict or even ban third trimester abortions, except to preserve the life or health of the mother. Thanks for the link, though.
With the advance of medical technology, we can look inside the womb, which was a black box to us in 1973. We now know that a seven month old fetus isn't a mass of cells, and indeed is pretty close in appearance and behavior to a baby at term.
It is looking at those ultrasounds that is moving me and most Americans from a "Sure, whatever" attitude toward third trimester abortions. I think that the third trimester health exception should be read as narrowly as possible now, and should exclude the "it will depress or inconvenience the mother" rationale that was formerly used to allow third trimester abortions. I think that in good conscience we can't allow those anymore
Posted by: stonetools | June 02, 2009 at 10:05 AM
stonetools,
Did Tiller do abortions on the whim of the mother?
Posted by: someotherdude | June 02, 2009 at 10:13 AM
"With the advance of medical technology, we can look inside the womb, which was a black box to us in 1973."
Wow, you really do have absolutely no idea what you're talking about.
Posted by: Gary Farber | June 02, 2009 at 10:21 AM
MckinneyTexas: The finality of abortion seems to me a greater burden than 9 months of gestation. Fifty years ago and beyond, when single motherhood was an anathema and when pregnancy was for many if not most women who could not arrange to be quickly married a grinding and unbearable social and emotional burden, the 9 month hosting was far more of an intrusion than it is today.
"Nine month hosting"? Well, pro-lifer arguments do tend to rest very strongly on the concept that women are mere incubators, not people with rights.
The feminist movement, and the general trend towards liberal social values and away from conservatism, has indeed meant that women who do not choose to have an abortion, and aren't married, can still choose to keep the baby and be supported as mothers - insofar as the US supports mothers, which is not much by European standards. This is a good thing: socialism and social welfare and the fall of religious values that condemned women for having sex outside marriage are all grand movers towards positive social change.
Nothing, however, has altered the plain fact: pregnancy is a life-altering and life-threatening change to a woman's body, that can kill her: pregnancy and childbirth can kill or permanently damage a woman. Arguments in favor of forcing a woman to endure risks to her life and health are "pro-life" only by political correctness: it is PC and courteous to call people what they desire to be called. Forcing women through pregnancy and childbirth against their will is not, never can be, literally pro-life: that's merely the name the forced-pregnancy movement have adopted for themselves.
Posted by: Jesurgislac | June 02, 2009 at 10:21 AM
"A careful study of court decisions will show that the courts decline many issues on the grounds of their being 'political questions', to be decided by the legislatures or plebiscites or whatever other democratic process there might be."
A careful study of court decisions will show that the courts accept many issues on the grounds that they're constitutional questions only the courts can decide.
There are thus these two categories of issues. This shouldn't come as news to anyone. Rights are not subject to a vote.
To repeat myself yet again: [...] Seriously, if it's murder, then there's no rationale behind letting some states legalize it. And if there's a right to privacy, and the right to abortion is an extension of that, there's no rationale for letting some states remove that right.
Neither view leaves a rationale for "this is something that should be subject to the political process." That rationale's only basis would seem to be arbitrary utilitarianism.
In which case, why shouldn't we also be able to vote on whether whether murder for hire should be legal, and whether people shouldn't be allowed to own a gun, or say what they like?
You can argue that abortion is murder, but if so, you can't argue that states should vote on it. If you can't argue that it's murder, then what is your argument for banning it?
If your argument is that abortion is murder, then you're arguing for arresting and putting away on charges of first degree murder all medical and clerical and support personnel who engage in the conspiracy to commit murder, as well as the mother and anyone else she conspired with (husband, boyfriend, relatives, friends).
This isn't an argument you can split down the middle. Pick which argument you're making.
Posted by: Gary Farber | June 02, 2009 at 10:23 AM
As a matter of fact, I DID read the decision, which is why I said that the right to a third term abortion is not absolute.
If this is the only defense or excuse of your previous statement you offer, I find it harder to believe you were arguing entirely in good faith. You at 10:17 p.m., emphasis mine:
well, my two cents is that it is kind of becoming clear that people-many people, and I includeme are beginning to see that 7 or 8 month old babies aren't just tumors, to be removed and snuffed out at the whim of a woman and her doctor.
But as Tony P. points out sarcastically:
And people should not be allowed to undergo chemotherapy on a "whim", either. I'm sure there's just as much of that going about as there is whimsical late-stage abortion.
Backing him up, there's this:
I couldn't find exact statistics on how many of those are for medical reasons, but since according to the same link many medical abnormalities can't be found until 14 weeks or even much later, I assume most of them are. So do you still believe that late-term abortions are sought out "on a whim"?
Posted by: Cyrus | June 02, 2009 at 10:34 AM
If your argument is that abortion is murder, then you're arguing for arresting and putting away on charges of first degree murder all medical and clerical and support personnel who engage in the conspiracy to commit murder, as well as the mother and anyone else she conspired with (husband, boyfriend, relatives, friends).
This is where I'm at, and the fact that most, if not all anti-abortion folks never deal with this, tells me there is something else going on, and the other side is acting in bad faith.
Posted by: someotherdude | June 02, 2009 at 10:34 AM
The statement that the law was powerless here is a dangerous lie. Sure, if you object to Roe, you'll find a target rich environment of abortion providers to choose from and sure, your only political choice would be to try to align with a party that would actually try to do something about Roe.
But that is not the case here. Dr Tiller was killed for performing late term abortions. The post-Roe law has been effective in eliminating post-viability abortions almost everywhere. The fact that they were legal federally is a choice the Republican party made to work on partial birth abortions and not post-viability abortions. This was done specifically so that Roe could be chipped away at, but it was a choice. The fact that they were legal in Kansas is a choice Kansas made. They were free to change the law and litigate the changes if people objected. Given the recent Supreme Court decisions, it's likely a late term abortion ban would be valid as written and
overturned only when someone sued because it was applied poorly. Kansas did not try and that was a political choice made by a Republic. The people of the state of Kansas tried Dr Tiller for illegal abortions and he was acquitted under the law
To say that the law was powerless and violent acts are understandable in this case makes any form of government meaningless.
Posted by: windshouter | June 02, 2009 at 10:59 AM
So do you still believe that late-term abortions are sought out "on a whim"?
Then I assume that we agree that late term abortions (however many of them that there )should not be allowed for non-life-threatening reasons? Because I think that there is a developing modern consensus on that point-informed (in my opinion-if not Gary's) by modern technology which has extended the range of viability and which has shown us in vivid detail that the life of a late term fetus is close to that of a baby at term.
And if we are only talking about a handful of pregnancies, then its no big deal , n'est-ce pas?
Posted by: stonetools | June 02, 2009 at 11:18 AM
stonetools,
No one is denying that it’s a life….its a life at conception and it’s a life when it’s a sperm and egg separated, life permeates every aspect of it….however, the problem seems to be how much of that life is deserving of human rights above and beyond a woman’s willingness to support it, in her. It’s a life at every stage, being a “life” doesn’t grant it the rights of a person. However a woman is a person, who should be able to choose what grows in side of her. If she wants to prevent a life growing into a person, that seems to be more of her rights as a human than the zygotes’.
In the end, the woman is control of her body, and gets to choose what grows inside of her womb. Liberal (Classical and Modern) philosophy justifies this, and most Protestants (conservative and liberal) used to justify it, this view changed when it became a valuable political tool, as far as I can see.
Now if we can get the US conseravtive culture to view others, outside of the US as lives, now that would be a culture of life.
Posted by: someotherdude | June 02, 2009 at 11:40 AM
That should be
"Now if we can get the US conseravtive culture to view others, outside of the US as lives deserving of human rights,---now that would be a culture of life."
Posted by: someotherdude | June 02, 2009 at 11:47 AM
Absolutely not. Far too many exceptions to your simplistic blanket statement (for example, life threatening is not equivalent to serious medical consequences. Permanent sterility, for example).
Posted by: gwangung | June 02, 2009 at 11:50 AM
"Then I assume that we agree that late term abortions (however many of them that there )should not be allowed for non-life-threatening reasons?"
It turns out that lots of people don't agree that laws should be passed criminalizing what medical procedures women should or shouldn't have. Lots of people don't agree that other people should claim such a right over others, and that it's particularly unseemly for people who will never be bothered by their rights being infringed in such a manner to attempt to criminalize what medical procedures women do or don't have.
Posted by: Gary Farber | June 02, 2009 at 11:52 AM
As well, the imposition on the woman must mean something as well. The intrusion of the state must be limited, or else we're going into Griswold territory where I do not think other people have any stake in an indvidual's behavior.
Pointing to a potential baby sorta reifies the concept. Nature and reality is much messier than that. And because of that messiness, I would prefer that it be drawn by the individuals involved--one size does not fit all.
If there is a line to be drawn, it is at a point where rights begin to clash, and I cannot give rights to something that cannot exist independently of another. The point of viability seems to me to be a good point where competing rights make sense as a criterion.
And because we're talking about competing rights, it makes no sense to me to talk about disenfranchisement. We ARE talking about fundamental civil rights here, and that, to me, makes the "wishes of the voting public" more than a tad bit irrelevant.
Posted by: gwangung | June 02, 2009 at 11:58 AM
"It turns out that lots of people don't agree that laws should be passed criminalizing what medical procedures women should or shouldn't have. "
But in point of fact as to late term abortions a large majority do in the US.
"Lots of people don't agree that other people should claim such a right over others, and that it's particularly unseemly for people who will never be bothered by their rights being infringed in such a manner to attempt to criminalize what medical procedures women do or don't have."
But as to late term abortions a large majority do.
Posted by: Sebastian | June 02, 2009 at 12:12 PM
Then I assume that we agree that late term abortions (however many of them that there )should not be allowed for non-life-threatening reasons?
You assume wrong. I never said that. You didn't ask what I think, but I'll tell you anyway that legislating to ban something so rare in circumstances so fraught seems like a bad idea. Black swans, "bad cases make bad law," etc.
Also, your reply to me couldn't have been better designed to demonstrate that you're not arguing in good faith. Not caring about how many cases even exist of what you're talking about? Pivoting so smoothly and completely from "to wonder if killing 7 or 8 month fetuses is arguably a form of homicide" to "if we are only talking about a handful of pregnancies, then its no big deal , n'est-ce pas?"
Thanks for clearing that up.
Posted by: Cyrus | June 02, 2009 at 12:18 PM
But in point of fact as to late term abortions a large majority do in the US.
In the abstract. Very few people who are presented with specific cases will argue that Mr and Mrs Deekaa6 ought to be prosecuted and jailed.
But as to late term abortions a large majority do.
Only because, judging by their reaction to specific cases, late-term abortions are so rare that few people are reacting from what they know, but only from what the pro-life movement has told them.
Just as the anti-marriage movement can get voter-majorities against same-sex marriage, even though after court decisions allowing marriage very few people are shown to care all that much, because they lie.
The pro-life movement does not, in fact, present actual late-term abortions and ask people "Do you think this woman should be treated as a criminal for having a late-term abortion?" Instead, they tell lies about not having any data about late-term abortions (remember?) and claim that women just decide "at whim" to terminate healthy pregnancies because they feel like it and have got to be stopped.
That their propaganda campaign has been murderously successful is undeniable. To argue that most people who are presented with the real heartbreaking choices involved in late-term abortion believe that the women who had to make those choices ought to be treated like criminals, is flagrantly untrue.
Posted by: Jesurgislac | June 02, 2009 at 12:26 PM
Whether you agree with it or not, we as a country have decided to protect a woman’s right to be free from forced childbirth.
I could have sworn that "we as a country" never had a chance to make that decision, because the Supreme Court made it for us. Can you point to the legal enactment whereby "we as a country" made that decision? Was there a national referendum that I missed somehow?
Posted by: JD | June 02, 2009 at 02:05 PM
"I could have sworn that "we as a country" never had a chance to make that decision, because the Supreme Court made it for us."
In what year did the Supreme Court cease to speak for the country as one third of our democratically-created government? When did the SCOTUS cease to be "we, the people," in your view?
Posted by: Gary Farber | June 02, 2009 at 02:23 PM
Are you kidding? The Supreme Court doesn't "speak for the country," nor is the Supreme Court remotely "democratic."
As anyone who has been to law school knows, the whole point of judicial review conducted by an independent judiciary is that the Supreme Court has the power to _overrule_ something that "we as a country" had decided to do. Thus, as to abortion, "we as a country" had a lot more restrictions on abortion, and would have a lot more today, if not for the Supreme Court stepping in and saying "no."
Just to be clear, the Supreme Court's decision to overrule the people may be right or wrong, depending on what the Constitution and precedent actually say, or depending on what rights you want to keep free from interference by a democratic vote. But it's arrant nonsense to pretend that "we as a country" have spoken when what really happened is that the Supreme Court overruled everyone else. That's as silly as claiming that "the Supreme Court has spoken" when a congressional committee issues a report. Just not so.
Posted by: JD | June 02, 2009 at 02:30 PM
And it's particularly baffling to make such an error here: McArdle's whole point (such as it is) is that "we as a country" didn't decide to enshrine abortion in the Constitution . . . the Supreme Court did that over the objections of tens of millions of people. And this sort of constitutional ruling is different in kind from the normal democratic process whereby presidents are elected or policies enacted that you might disagree with. When something so controversial is constitutionalized, one whole side of the debate suddenly feels like it can't do (much of) anything . . . not by agitating for another vote, not by waiting for the next election, not by campaigning and trying to persuade people democratically, not by any means at all.
Yes, lots of people fiercely disagreed with the Iraq War. But guess what: we now elected a president who opposed the Iraq War, and who has the power to ramp things down. Imagine, by contrast, if the _Supreme Court_ had issued a ruling that the American military must bomb Iraq regardless of how anyone votes, and that the bombings continued for the next 30 years with no end in sight and no possibility of democratic input. And imagine if a blogger tried to shut out your views by saying, "We as a country decided to bomb Iraq for the past 30 years, and that's how it's going to stay."
I know that YOU may not agree that this situation and abortion are analogous, but the point isn't what YOU think: the point is to try to imagine what the world looks like to someone from a different perspective.
Posted by: JD | June 02, 2009 at 03:00 PM
2000, I'd guess.
Posted by: Slartibartfast | June 02, 2009 at 03:09 PM
That last ought to have mischievous-looking emoticons bracketing it, but I forgot to do that.
Posted by: Slartibartfast | June 02, 2009 at 03:35 PM
Slart, you made a liberal funny. I'm touched.
Posted by: Catsy | June 02, 2009 at 03:47 PM
"the Supreme Court did that over the objections of tens of millions of people. And this sort of constitutional ruling is different in kind from the normal democratic process whereby presidents are elected or policies enacted that you might disagree with. When something so controversial is constitutionalized, one whole side of the debate suddenly feels like it can't do (much of) anything . . . not by agitating for another vote, not by waiting for the next election, not by campaigning and trying to persuade people democratically, not by any means at all."
See, this is why I always say that we should sympathize with the KKK after Brown v. Board of Ed began forcing desegregation over the objections of tens of millions of people. What could the KKK do democratically?
Posted by: Eric Martin | June 02, 2009 at 04:03 PM
Nice try at the typical smart aleck reply, but as I already said, sometimes the Supreme Court may be right in overruling the democratic process. The point, however, is that it is patently ridiculous to claim that the Supreme Court's overruling of the democratic process is itself part of the democratic process. No, it's not. It's a check on democracy, not an instance of democracy.
Posted by: JD | June 02, 2009 at 04:58 PM
What Catsy said. :-) :-) :-) :-)
*spare emoticons for Slarti*
Posted by: Jesurgislac | June 02, 2009 at 05:17 PM
"It's a check on democracy, not an instance of democracy."
That depends on your definition of "democracy" now doesn't it? For example, the Supreme Court is appointed by duly elected leaders to interpret laws and guard against the tyranny of the majority. But that check is vital to a healthy democracy - I would argue.
So saying that the Supreme Court is a check on democracy is really not right. It's a check on one potential negative outcome of majoritarian electoral systems.
Using your definition, the Bill of Rights itself would be a "check on democracy."
Posted by: Eric Martin | June 02, 2009 at 05:18 PM
Adding, there is a tendency to confuse democracy with elections and majority rule. There are more elements vital to democracy, including especially a healthy, independent judiciary.
Posted by: Eric Martin | June 02, 2009 at 05:28 PM
"For example, the Supreme Court is appointed by duly elected leaders to interpret laws and guard against the tyranny of the majority."
Hmmm, I would have thought that the Supreme Court was appointed to interpret laws and guard against the tyranny of the majority only when the majority comes into direct conflict with the Constitution. The majority can tyrannize all it wants other than that right?
The role of judges makes sense only so long as they derive their power from the actual Consititution. When they drift from that, they lose legitimacy.
Posted by: Sebastian | June 02, 2009 at 05:31 PM
When something so controversial is constitutionalized, one whole side of the debate suddenly feels like it can't do (much of) anything . . . not by agitating for another vote, not by waiting for the next election, not by campaigning and trying to persuade people democratically, not by any means at all.
Which is why we have no income tax, US senators are selected by state legislatures, and women aren't allowed to vote.
Posted by: Hogan | June 02, 2009 at 05:33 PM
"Hmmm, I would have thought that the Supreme Court was appointed to interpret laws and guard against the tyranny of the majority only when the majority comes into direct conflict with the Constitution. The majority can tyrannize all it wants other than that right?"
Agreed. My statement was incomplete in that respect, and likely others. But I welcome the opportunity to clarify.
Posted by: Eric Martin | June 02, 2009 at 05:34 PM
"Which is why we have no income tax, US senators are selected by state legislatures, and women aren't allowed to vote."
Is there a compelling reason why under your current understanding of the powers of the Supreme court that all of those things shouldn't have been done without an amendment?
Posted by: Sebastian | June 02, 2009 at 05:37 PM
7 or 8 month old babies aren't just tumors, to be removed and snuffed out at the whim of a woman and her doctor.
Well, that's a nice way of framing the discussion. I take it you celebrated your first birthday three months after you were delivered from your mother, and every 12 months thereafter?
Posted by: Phil | June 02, 2009 at 06:24 PM
Where the vindication of one person’s rights so irrevocably and profoundly affects the rights of another person, or potential person, then judicial fiat is insufficient in a democracy to decide that right."
Uh, I actually hope that the law is as silent on the matter of potential people as it is on the matter of invisible and imaginary people.
Posted by: Phil | June 02, 2009 at 06:33 PM
He might be Chinese.
Posted by: Sebastian | June 02, 2009 at 06:33 PM
"It turns out that lots of people don't agree that laws should be passed criminalizing what medical procedures women should or shouldn't have. "
But in point of fact as to late term abortions a large majority do in the US.
A lot of people in the US think that laws should be passed criminalizing what kinds of sex people can have which other, too, and who can have it. A lot of people think others should have to get a license from the state to be a parent. Lots of cranky busybodies would like to vote to prevent their neighbors from doing lots of things.So what?
Posted by: Phil | June 02, 2009 at 06:35 PM
Sebastian: He might be Chinese.
...which would mean he wouldn't celebrate his birthday till he was sixty?
(It's an urban myth, based on a misunderstanding of how Chinese culture traditionally measures age, that the Chinese measure a person's age from conception. The first day of the Chinese New Year in the lunar calendar is the starting point of a new age. A child is counted as "one" from the day of their birth, and one more year is added to a person's age as soon as they enter the New Year. Out of respect for age, children celebrate their parents' birthdays, rather than parents celebrating their children's, and traditionally, after the important sixtieth birthday, a person will celebrate the seventieth, eightieth, ninetieth...
But not "conception day". (Though the myth doesn't originate with pro-lifers - I remember reading it in books about China that were published long before the pro-life movement got going in the US - it seems to have been picked up by them as an example of a culture that believes life begins at conception.)
Posted by: Jesurgislac | June 02, 2009 at 06:57 PM
"Are you kidding? The Supreme Court doesn't 'speak for the country,' nor is the Supreme Court remotely 'democratic.'"
We have a tripartite system of three equal branches of government. This is how it was democratically constructed. All three branches indeed speak for the country, and the entire government was created democratically.
"But it's arrant nonsense to pretend that 'we as a country' have spoken when what really happened is that the Supreme Court overruled everyone else."
It's arrant nonsense to pretend that the Supreme Court is some alien body, outside our government, imposed on our government by non-democratic means. It's none of these things. Our government speaks with three voices, each speaking for an equal part of government. Often these voices conflict, but at no time are any of them outside of our government.
Posted by: Gary Farber | June 02, 2009 at 07:12 PM
Well, this is getting into some elementary civics here, but no one said the Supreme Court is an "alien body." It's part of our government, sure. But it is most definitely NOT democratic, nor is it "we the country." The whole freaking point of judicial review is that the Supreme Court has the power to override the rest of the country on occasion. Sometimes that does indeed need to happen. But no sensible person would suggest that a Supreme Court decision overriding the country's decision is the same thing as the country making a decision . . . that is PRECISELY the opposite of the truth.
Posted by: JD | June 02, 2009 at 07:47 PM
Okay, JD,
What form would "the country's decision" to permit abortion need to have taken in order to meet your own standard of democracy? A national referendum? A series of Congressional elections?
I'll take a wild guess: a Constitutional Amendment would have worked for you. But I am at a loss to understand what such an amendment would say, exactly. Care to take a stab at it?
--TP
Posted by: Tony P. | June 02, 2009 at 10:02 PM
"But no sensible person would suggest that a Supreme Court decision overriding the country's decision is the same thing as the country making a decision . . . that is PRECISELY the opposite of the truth."
First, the Supreme Court can't override "the country's" decision, since one third of the country's decision is that of the Supreme Court.
To say that the Supreme Court makes up one third of the country's decision is simply to observe that this is the structure of our government.
A decision by Congress, or the President, is just as much, or little, a decision by one third of our government. None of these is less equal or legitimate than the other two branches of government. Each branch gets to speak for "us."
Posted by: Gary Farber | June 02, 2009 at 10:55 PM
The Supreme Court's judicial review power certainly is a check on democracy, but that is not the same as being a check on "We The People" governance. The reason this is not intuitively obvious is that
(a) the natural-law/sovereignty theory that was very popular in 1789 is no longer common parlance,
(b) the Constitution, including all of its checks on the much-feared mob, was put in place by the sovereign We >200 years ago and we no longer feel like the We that enacted it is us.
But popular sovereignty expressed through a constitution is still the theory on which our system is based. If you don't like that theory, or some particular part of the Constitution, amend it. Yes, I know how hard that is, there are lots of amendments I would like to see that are never going to happen. But your choices are:
acquiesce
amend
go take over Tristan de la Cunha or somewhere
finagle an overturn by the Court,
OR
break the law
That said, do you actually WANT to do away with judicial review? If so, what do you replace it with? National referenda? If not, then judicial review remains the sovereign will. And, as Hilzoy said elsewhere, in a democracy any given citizen often loses even on very important issues.
Although amendment is difficult, one effective way to change the popular will is satyagraha. The key to satyagraha is that you commit absolutely to peaceful persuasion. The anti-choice movement, by and large, lacks that commitment. Tiller's killer could have instead, for instance, set himself on fire in front of the clinic on live webfeed. He evidently lacks the moral courage and love for America needed for that. Instead, he set himself higher than the sovereign, overriding my -- and your -- right to have decisions made within our process. Why are you defending his theft of your rights?
Posted by: The Crafty Trilobite | June 02, 2009 at 11:52 PM
What form would "the country's decision" to permit abortion need to have taken in order to meet your own standard of democracy? A national referendum?
FOCA would do it. And a constitutional amendment (not that this would be necessary to provide the "country's" voice) could simply say, akin to many other amendments, "No state shall pass a law substantially infringing on the right to abortion."
Gary: I don't know how to put this any more simply. The Supreme Court is part of our national government. Yes. No one questions that. And in the first instance, "we the country" did set up the Supreme Court. Yes. But that does NOT mean that the day-to-day function of the Supreme Court is to represent the day-to-day decisions of "we the country." Quite the opposite. The function (as far as judicial review is concerned) is to correct and serve as a check on the decisions that "we the country" might make. "We as a country" may decide to execute 10-year-olds. The Supreme Court is there to say "No." "We as a country" may decide to make homosexuality illegal. The Supreme Court is there to say "No."
But on your account, one falls into ridiculous contradiction: "We the country" might decide something, but as soon as the Supreme Court makes a 180-degree reversal, "we the country" have decided the opposite. You've just defined away the very concept of the Supreme Court serving as a check on "we the country."
That isn't a useful way to analyze anything.
Posted by: JD | June 03, 2009 at 11:20 AM
Try this:
For decades, some school districts have tried to integrate their schools via school assignment practices. "We the country" were fine with that. Then not too long ago, the Supreme Court stepped in, and by a 5-4 vote, said that such racial assignment had to stop.
This was a controversial decision, to say the least. Lots of "we the country" opposed it. And in reality, it was a decision by 5 lawyers in DC . . . yes, acting as part of the Third Branch of government, but ultimately it was the opinion of 5 lawyers.
So you'd be fine with saying, "We the country have decided that it's not important to pursue racial integration in schools"? That broad phrasing wouldn't seem to you to elide any distinctions? It wouldn't seem too un-nuanced and simplistic?
Posted by: JD | June 03, 2009 at 01:55 PM
JD: I still think you're confusing electoral supremacy on a given issue with democracy. Democracy as a concept is much more elaborate than "majority rule."
As such, I do not distinguish Supreme Court decisions from the will of the American people.
I mean, if a referendum passes 51% to 49% is it really accurate to say "we the people" made the decision?
To use your words:
That broad phrasing wouldn't seem to you to elide any distinctions? It wouldn't seem too un-nuanced and simplistic?
Posted by: Eric Martin | June 03, 2009 at 02:15 PM
"But on your account, one falls into ridiculous contradiction: "We the country" might decide something, but as soon as the Supreme Court makes a 180-degree reversal, "we the country" have decided the opposite. You've just defined away the very concept of the Supreme Court serving as a check on "we the country." "
But legislatures reverse themselves frequently as well. Isn't that a ridiculous contradiction?
And as I mentioned, the SC is not a check on "we the people" it is a check that "we the people" agreed in advance to place on the tyranny of the majority - that is, we the people (each of us) deserve certain protections even when a majority (or legislative body/executive organ) decide otherwise.
Posted by: Eric Martin | June 03, 2009 at 02:24 PM
"The function (as far as judicial review is concerned) is to correct and serve as a check on the decisions that 'we the country' might make. 'We as a country' may decide to execute 10-year-olds."
You're begging the question; you're simply asserting that the Supreme Court somehow isn't as much the country and the government as the other two branches of government. This is incorrect, but since we're down to simple contradiction, there seems no point in further debate on this with you.
"'We as a country' may decide to execute 10-year-olds."
And obviously if only two thirds of the government decide on that, but not the government as a whole, then "we as a country" haven't decided to favor any such thing. Your definition is that only the Congress and President count as representatives of "we as a country"; that flies in the face of reality. Laws that the Supreme Court vetos turn out not to be what "we as a country" do at all. It just doesn't happen, because it can't, because the government doesn't function that way; that's the way "we as a country" function: with three branches of government together representing "we the country." Not two only.
Posted by: Gary Farber | June 03, 2009 at 02:33 PM
I do not distinguish Supreme Court decisions from the will of the American people.
That's fine if you want to do that when talking to yourself, but when talking to other people, there's going to be quite a bit of confusion if you equate those two very different things, and thereby seem unable to recognize the concept that a few lawyers in DC can (and sometimes do) overturn something even if 90% of people voted for it.
Anyway, if you guys have no problem with someone saying, "We as a country reject racial integration," or "We as a country decided that Bush should win in the Bush v. Gore case," then so be it.
Posted by: JD | June 03, 2009 at 02:45 PM
"That's fine if you want to do that when talking to yourself, but when talking to other people, there's going to be quite a bit of confusion if you equate those two very different things"
You have a cite supporting this, I assume? May I ask what body appointed you to speak for "other people"? Thanks.
The Supreme Court doesn't serve as "as a check on 'we the country'": you're just making that up to suit yourself. The Supreme Court serves as a check on the legislatures and the executive.
"Anyway, if you guys have no problem with someone saying, 'We as a country reject racial integration'"
Obviously that was exactly the case for the better part of a century; then the country reversed itself, for the most part. Which part of this do you deny?
"or 'We as a country decided that Bush should win in the Bush v. Gore case,' then so be it."
Obviously that's what "we as a country" decided; did Al Gore become president? Did George W. Bush not serve? Which of these points do you deny?
Posted by: Gary Farber | June 03, 2009 at 02:57 PM
"Anyway, if you guys have no problem with someone saying..."We as a country decided that Bush should win in the Bush v. Gore case," then so be it."
I'm trying to think of ways that I could convince my foreign-born/based friends that this didn't happen, alas, I cannot.
Sadly, we as a country decided that Bush wone. I thought it was a horrible decision, but it was the country's decision.
Posted by: Eric Martin | June 03, 2009 at 03:04 PM
You have a cite supporting this, I assume? May I ask what body appointed you to speak for "other people"?
I'm just assuming that other people are normally able to tell the difference between apples and oranges, and don't normally insist that two very different things are really the same.
The Supreme Court doesn't serve as "as a check on 'we the country'": you're just making that up to suit yourself. The Supreme Court serves as a check on the legislatures and the executive.
Well, again, this is pretty basic civics here, but the legislatures are elected by the people, whereas the Supreme Court isn't. Thus, when Congress or numerous state legislatures enact something, and then the Supreme Court strikes it down, most people are able to perceive that the former action was more democratic and the latter action was a check on democracy.
"Anyway, if you guys have no problem with someone saying, 'We as a country reject racial integration'" Obviously that was exactly the case for the better part of a century; then the country reversed itself, for the most part. Which part of this do you deny?
Do you really not know what I meant here? I obviously wasn't talking about the past century. I was asking whether you would be similarly obstinate in defending someone who insisted that after the Supreme Court's 2007 decision in the racial integration case, that 5-4 vote could be reduced to "we as a country" rejected integration. That seems to me a remarkably simplistic and un-nuanced way to look at the world.
Posted by: JD | June 03, 2009 at 03:51 PM
"That seems to me a remarkably simplistic and un-nuanced way to look at the world."
Funny to me that you keep making this point, and yet you equate "democracy" with actions by the legislature.
No mention of democracies including independent judiciaries that check the actions of legislatures and executive organs.
That is, the judiciary does not check democracy itself (that, as Gary pointed out, is circular reasoning), but is an integral part of democracy by virtue of its checking function!!
Posted by: Eric Martin | June 03, 2009 at 04:08 PM
a few lawyers in DC can (and sometimes do) overturn something even if 90% of people voted for it.
Wait, what? When has this ever happened?
Posted by: Phil | June 03, 2009 at 04:23 PM
Wait, what? When has this ever happened?
It's highly likely that SCOTUS has struck down a law that was passed by 90% majorities in Congress. Probably the Children's Online Protection Act and the Communications Decency Act probably both meet that standard.
Posted by: Ugh | June 03, 2009 at 04:34 PM
Yes, but even 90% majorities in Congress does not equate to 90% of the people. And if the consensus is so overwhelming, amend.
Posted by: Eric Martin | June 03, 2009 at 04:39 PM
"I'm just assuming that other people are normally able to tell the difference between apples and oranges, and don't normally insist that two very different things are really the same."
Which is to say, you're assuming that your personal view is near-universal, rather than idiosyncratic. You're entitled to hold that view, but you may not find it persuasive with people who disagree.
Posted by: Gary Farber | June 03, 2009 at 04:59 PM
Posted by: Gary Farber | June 03, 2009 at 04:59 PM
Yes, but even 90% majorities in Congress does not equate to 90% of the people.
Right, I'm just assuming he's equating the two for purposes of pointing out that SCOTUS has, in fact, overturned highly popular laws (and I wouldn't be surprised if COPA and CDA would garner 90% support if polled).
Referring to the Supreme Court of the United States as "a few lawyers in DC" is as accurate as referring to the president as "some guy in DC," and as accurate as referring to Congress as "a bunch of people in DC."
I understand that Gary, but that was the closest I could get to intepreting the comment in a sensible manner, and is in fact how he was using "a few lawyers in DC" in other comments.
Posted by: Ugh | June 03, 2009 at 05:12 PM
No, the Supreme Court does not "speak for the United States of America," if by that you mean that it in any way represents popular opinion. Representation isn't its function. Hence, people who want to be clear and nuanced in their thinking don't blithely equate whatever the Supreme Court happens to have said with what "we" as a people think or decide.
Eric, your problem seems to be wholly semantic:
the judiciary does not check democracy itself (that, as Gary pointed out, is circular reasoning), but is an integral part of democracy by virtue of its checking function!!
You are hung up on the term "democracy," using it to mean "whatever is part of our system of government." That doesn't work. Our system is democratic in some ways (allowing people to vote, most obviously), but it is indisputably undemocratic in others. The very notion of a constitution enforced by an unelected judiciary is entirely undemocratic, meaning that it is the part of our system that keeps the majority from democratically deciding to adopt oppressive laws.
Posted by: JD | June 03, 2009 at 05:30 PM
Still no answer from the anti-choice side here as to whether judicial review is legitimate in general, is part of our government in general, should be replaced with some other decisionmaking process in general. Nor does the mainstream of that movement reject judicial review generally. They have no principled objection to judicial review, they just hate the outcome. That's fine, but why not be honest about it?
The outrage is 100% about the outcome, because they get just as upset when they lose a vote as when they lose a court case. Upset enough to murder, in fact. A grand jury refused to indict Dr. Tiller based on an abortion statute. Unless Kansas had abortion statutes overturned in court under Roe, the majority in that state, as in most states, just plain is not on board with an absolute ban.
Posted by: The Crafty Trilobite | June 03, 2009 at 05:45 PM
"You are hung up on the term "democracy," using it to mean "whatever is part of our system of government." That doesn't work. Our system is democratic in some ways (allowing people to vote, most obviously), but it is indisputably undemocratic in others."
No. You're missing the point. "Democracy" as a concept has evolved beyond: Majority vote rules on all matters. It has also evolved beyond: Our system of government. Democracies, the world round, are judged on their ability to ensure minority rights in the face of electoral majorities and actions by the executive/legislature. Democracies, the world round, are judged on an active, independent judiciary.
Posted by: Eric Martin | June 04, 2009 at 10:23 AM
For example: In Iraq, we would conclude that the democracy was dysfunctional and unhealthy if the government passed a law saying that Sunnis can't hold government jobs. Even though it was backed by a majority of the voters, it would be labeled, ready, "undemocratic" or "antidemocratic."
Posted by: Eric Martin | June 04, 2009 at 10:24 AM
You seem to be confusing majoritiarianism with democracy. The former focuses on strict majority rules.
The latter takes into account the necessity to guarantee minority rights, and proper checks on abuses of power by the executive and legislative branches. Minority rights, by definition, can only be guaranteed outside of the "majority rules" dynamic.
Wiki is helpful if you want to read about the concept of Democracy further:
http://en.wikipedia.org/wiki/Democracy
Posted by: Eric Martin | June 04, 2009 at 10:35 AM
Last thought: This reminds me of the confusion by many Bush supporters who touted "democracy is on the march"! when they pointed to a series of elections in the Middle East.
Democracy is so much more than elections. Elections are a part of democracy, but not the totality. Not even close.
Posted by: Eric Martin | June 04, 2009 at 10:37 AM