Bork on Alito
Robert Bork on Sam Alito.
Key section:
overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. Chief Justice Roberts and Justice Alito will hear a lot about stability in the law, the virtues of stare decisis, and the reliance many women have placed on that decision. The obtrusive fact is that constitutional law has never been stable. Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes. For that reason, many justices have made the point that what controls is the Constitution itself, not what the Court has said about it in the past. Cases like Roe, that some will claim must not be disturbed, were themselves repudiations of prior understandings of the Constitution.
If judgments about the prudence of overruling are invoked, the justices should take note of the fact that Roe lies at the center of the bitter polarization of much of American society. In countries where the issue is decided democratically, no such intense animus exists. Compromises are worked out and each side knows that it is free to continue the public debate in hope of doing better next time.
That's the thing I've wondered about for years; if
Roe had never happened (or if it were reversed) and the states took over the issue, as they should, what would both sides give up on the issue?
Because it's clear that in a truly democratic system that both life and "choice" have enough of a constituency to keep their view at the table; neither side can extinguish the other (at least in most states; I could see Massachusetts and Utah moving to one extreme or the other).
Because I don't see either extreme giving ground gracefully.
Posted by Mitch at
November 4, 2005 06:54 AM
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One of the liberal lies is that overturning Roe is the same as mking abortion illegal. Instead, it turns control over this to the states. In states where pro-life Republicans control state legislatures, things will get interesting. They will have to stop posturing and actually make state law. Satisfying their base will energize those who favor legal abortions -- a slim majority in many states. To make things more complicated, pro-life folks are split between those who favor a ban with no exceptions and those who favor a ban with some exceptions. With Roe in place, those two factions of the pro-life movement get along. Without Roe, they'll start fighting amongst themselves.
I really don't understand why the left wants to see Roe upheld.
Posted by: peter at November 4, 2005 10:46 AMWhich liberal said that Roe v. Wade will make abortion illegal, would you mind posting that statement? Otherwise..it's just YOUR lie.
Mitch... as for innacuracies.. you said the President is resurgant... yet 2 polls, AP-IPSOS, and CBS have him below 40% approval, and at the lowest point in his Presidency.. and then there's this..
USATODAY ONLINE REPORTS:
http://www.usatoday.com/money/economy/employment/2005-11-04-jobs_x.htm
Sure am glad that we passed those tax cuts to generate jobs...
Yep, darn those liberal lies.
BTW.. Mitch, I appreciate your even-handedness on this issue..it's about the first time I've seen it from you. I agree that both sides are unlikely to give any ground.. which is truly a shame, both are wrong. Viable children should not be allowed to be killed..2 day old fetuses are only "lives" based on our religious statements. The courts of our Grandparents did not hold people to trial for murder in the death of early term fetuses (as far as I know they didn't do it for late term fetuses either). For those of you who want to call it murder at the same time talking about being a constructionalist, you have an unreconciliable gap... Overturning Roe V. Wade won't make abortion illegal, but states will soon do so after that, just as they had prior to it. Disolution of the right of privacy WILL however have profound affects on our society, affects you have not considered.
PB
Posted by: pb at November 4, 2005 05:17 PMpb,
First, I am liberal enough that I've already recycled that fundraising letter that intimated that, unopposed, Bush would select justices that would make abortion illegal. But I'm not liberal enough to actually have sent them any money.
I consider myself a cranky liberal. Voted for Wellstone. Does that satisfy you?
This claim that overturning Roe would ban abortion comes when the debate is condensed to a poster or a slogan. Or a headline. I did a quick and lazy search for an example. I didn't find it at NARAL, for instance, as their site is full of carefull, precise, long sentances. Plenty of space for nuance. Using Google, I found a headline at a liberal blog, SebiMeyer.com, which reads: Roberts indicated he would overturn Roe v. Wade, make abortion illegal
Hey, I'll admit it was a lazy search, and frankly, I've never heard of SebiMeyer.
There are plenty of states that, in the short run, may enact or revive laws that banned abortion. Thirty, by one count. However, in states like Wisconsin and Ohio, I am fairly confident that the electorate will correct that if they want to.
Posted by: peter at November 4, 2005 07:08 PMIF the court gets the gumption to overturn Roe v. Wade they will correct what is widely viewed as one of the worst reasoned decisions they've made, and we'll be back to where we were: decisions on legality by states' legislatures (and their courts given reality).
My worry is that with things like Kelo and Raich the very bizarre decision making pattern of this court they may well decide that the Commerce Clause means that the feds can regulate abortion. I'm sorry, but that stubborn libertarian streak combines with that small government streak of mine to make me dislike the idea that the US Congress should be legislating things like this.
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