Jonathan Adler: The VP Candidates on *Roe* & Federalism

[5711-Marine]

Posted by Jonathan Adler:
The VP Candidates on *Roe* & Federalism:
http://volokh.com/archives/archive_2...ml#1222968549*


** I am puzzled by a few things about the [1]Sarah Palin's and Joseph
** Biden's responses to Katie Couric's questions about Roe v. Wade and
** federalism.

** I found it odd that Palin could not name another Supreme Court
** decision with which she disagreed. After all, we know that she is
** aware of at least one Supreme Court decision other than Roe v. Wade
** with which she disagrees. Just over a month ago [2]she criticized the
** Supreme Court's decision in the Exxon Valdez case, slashing the
** punitive damages awarded by the trial court. So did she simply freeze
** up and forget? Was she afraid of a 'gotcha' comeback if she named a
** specific case? Or is she that much of a knucklehead that she can't
** even remember what she thought of the Court several weeks ago? My read
** of the video is that the first is most likely, but I'm sure others
** will disagree.

** Biden, the constitutional law scholar and former Chair of the Senate
** Judiciary Committee, spoke more smoothly and authoritatively on the
** issue. Yet while his defense of Roe may have sounded thoughtful at a
** superficial level, it was actually quite incoherent. Instead of saying
** that he thinks the abortion right is a fundamental liberty that
** deserves constitutional protection -- which he only hinted at later,
** and would be a more straightforward way to defend Roe and an abortion
** right under the Constitution -- Biden explained that the Court's
** decision is "as close to a consensus that can exist in a society as
** heterogeneous as ours." Setting aside his focus on Roe, and his
** description of Roe's initial holding as if it were still the law of
** the land and had not been supplanted by Casey's "undue burden" test,
** his rationale is problematic on several levels, particularly for
** someone who holds himself out as an expert on constitutional law.

** First, if the aim is a rule that embodies or approximates a national
** "consensus" on an issue, there is no reason to believe that the
** imposition of a uniform constitutional mandate by the Supreme Court is
** more likely to embody such a consensus than will the action of the
** legislature. Not only is the Court less responsive to popular opinion
** than the legislature, Supreme Court decisions are also more difficult
** to change than statutory enactments. Thus, even if a the Court gets it
** right at a given point in time, it is exceedingly unlikely that the
** Court's unaltered judgment will reflect a social consensus over time.
** If, as Biden claims, the aim is to embody or approximate the social
** consensus, one has to take into account the fact that popular opinion
** shifts, but Roe does not.

** Second, if the aim is to have abortion laws that come as close as
** possible to embodying public values and preferences, any nationally
** uniform rule, whether permissive or restrictive, is less optimal than
** leaving the matter to the separate states. Allowing individual states
** to adopt their own rules will result in a greater percentage of the
** public living within a jurisdiction that imposes abortion rules with
** which they agree. To illustrate, consider a hypothetical nation with
** two states of equal populations. The national preference in favor of
** permissive abortion rules is 60% to 40%. But in State A the preference
** of permissive rules is 75% to 25% and in State B the preference for
** more restrictive abortion rules runs 55% to 45%. With a national rule
** reflecting popular opinion, 60% of the people live under a rule they
** support. Allowing each state to adopt its own rules, however, results,
** in 65% of the people ((75+55)/2) living under a rule they support. So,
** if the aim is a set of rules that reflects "consensus" within a
** heterogeneous society -- and this is the premise that Biden himself
** provided in the interview -- then the federalist approach is superior
** to a national rule, such as that embodied in Roe (or, for that matter,
** a national rule embodied in a constitutional amendment, such as the
** proposed "Right-to-Life Amendment.")

** My point is not that Biden is wrong to defend Roe. It may be difficult
** to defend the reasoning of Justice Blackmun's opinion, but reasonable
** people can and do disagree over whether the Constitution should be
** read to protect an abortion right, as well as on the question of
** whether Roe should be upheld on precedential grounds. Rather my point
** is to show that the basis upon which Biden chose to defend Roe -- the
** desire to approximate "consensus" in a heterogeneous society -- cannot
** justify the outcome he seeks to defend, and reflects a poor
** understanding of a constitutional system (particularly for someone of
** his background). While Biden speaks about these issues with in an
** authoritative manner, and has substantial experience discussing and
** debating constitutional questions, the substance was sorely lacking in
** this interview.

References

** 1. http://www.cbsnews.com/stories/2008/...4493062.shtml*
** 2. http://volokh.com/posts/1220123818.shtml*

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[Yellowfin]

Who gives a crap about that paltry case? We need the NFA overturned first.

[Robert Kayland]

Roe versus Wade?

I don't care how the Katrina refugees got back to New Orleans.

/Eh? What? Oh... never mind.

[sluggie24]

Roe versus Wade?

I don't care how the Katrina refugees got back to New Orleans.

/Eh? What? Oh... never mind.

HAHAHAHAHAHAHAHAHAHA.......