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October 18, 2005

Obligatory Miers Post: She Supported Amendment To Ban Most Abortions

Interesting:

Supreme Court nominee Harriet Miers pledged support in 1989 for a constitutional amendment banning abortions except when necessary to save the life of the mother, according to material given to the Senate on Tuesday.

"If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature," asked an April 1989 questionnaire sent out by the Texans United for Life group.

Miers checked "yes" to that question, and all of the group's questions, including whether she would oppose the use of public moneys for abortions and whether she would use her influence to keep "pro- abortion" people off city health boards and commissions.

Okay, maybe Bush isn't so dumb.

But:

"A candidate taking a political position in the course of a campaign is different from the role of a judge making a ruling in the judicial process." said Jim Dyke, a White House spokesman.

He's spinning there, trying to mollify the pro-Roe absolutists in the Senate. Problem is, what he's saying is also quite true. It's a somewhat easy call for a politician to support an Amendment with virtually no chance of passage, especially when running for office in a pro-life state.

What she will do on the court when left to her own "conscience" remains anyone's guess.

Still, those who have insisted that we should "trust Bush" have marginally improved their case.

But... She gives a confusing answer about a case so famous that even politically-attuned non-lawyers know about it to Arlen Spector.

Maybe Ramesh Ponnunu is being churlish here -- as he himself admits, conservatives are on treachorously brittle ice when attempting to field questions about Griswold v. Connecticut -- but one would have hoped she could give a smooth and coherent non-answer about the case without additional time to "bone up."

This is a tricky one. The law that Griswold v. Connecticut struck down was an odious and outdated bit of blue-nosery, making it illegal to purchase contraceptives, even for married couples. Strict constitutionalists are quite right to point out that nowhere in the Constiution does it guarantee one's right to buy a jimmy hat.

But...

How does one argue there is no "right to privacy" in the Constitution while also sort of agreeing with the (softer form of the) liberal position on this-- that the, ahem, "spirit of the Constitution" is generally one of freedom from government coercion in most matters except those directly harming other people or society generally?

If you admit there's a "right to privacy," then that pretty much allows any and all social-re-engineering by the Court to remake society into a more sexually-liberated kind of place, with lots of big velvet throw-pillows and ointments and light bondage and one of those sex-transporter machines from Logan's Run.

On the other hand-- are there some laws which so egregiously interfere with human freedom, without good cause, that even a conservative can say, "Sorry, but, you know, there are some minor, tiny little weak-form penumbras and emanations somewhere in that document that say you can't play Sex Nannies to married couples" ?

I do wonder this about the Court. In some rare cases, there will be laws which most of society feels are perfectly ass and yet they never get repealed, because few politicians are willing to take up the grand cause of free access to dildos.

If there is a real and genuine dysfunction in the system -- where the political wishes are the majority are being thwarted not by a noisy minority per se, but by their own sort of don't-rock-the-boat cowardice -- is that a legitimate basis for intervention by the Courts? If it is, how do we justify it on Constitutional grounds without making up new fakey rights? And how do we limit that power so that progressive, agenda-driven judges don't use that limited escape-hatch of judicial repeal of goofy laws to attempt to remake society as they wish it would be?

Hypothetical:The good Dr. Reo Symes wants to know if this "spirit" of the Constitution is like a "penumbra." Well, yes, and I say so in the post. But I'm arguing for a very weak-form of that idea, just enough to dispose of the most egregiously interfering laws.

Let's say a very-liberal state, like Vermont -- "for the children" --mandated "compatibility screening" before issuing marriage licenses, and required hours and hours of "sensitivity and interpersonal skills" training and "don't punch your wife" classes as well. And maybe some community service, too, on the theory that 1, you're getting state benefits from marriage and ought to "give back" and 2, that a strong community spirit will help foster a strong marriage.

Obviously, a jackass law, and one that would make conservatives' teeth grind.

But it doesn't violate any specific clause of the constitution.

Is there absolutely no room at all for any kind of substantive due process analysis from the right? Is the Constitution's general bias towards freedom of restraint from government a good enough basis to strike down a freedom-limiting law?

I'm just asking the question. I'm conflicted on this. I'm a strong believer in strict constructionism.

But like a strong believer in pacifism, there is always some amount of wiggle room. Like when you're talking about Nazis.


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posted by Ace at 02:07 PM

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