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Levinson and Balkin on the Politics of Roe:
Over at the Legal Affairs Debate Club, Sandy Levinson and Jack Balkin are debating "Should Liberals Stop Defending Roe?"
Gordon (mail):
Sandy Levinson's position is the same as that of some abortion rights advocates in the time of Casey, who were hoping the Supreme Court would overturn Roe and hand them a weapon to ensure a Democratic party sweep in 1992. But Sandy (O'Connor), Tony, and Dave ruined that strategy.
12.1.2005 5:38pm
Education in the Obvious:
I've also started to think that return abortion to the states would be a good idea, for essentially Levinson's reasons.

Somehow I overlooked federal preemption. Deprived of the political spoils of Roe, Repubicans in Congress will have incentive to use federal legislation restricting abortion to retain political power. Very little will be returned to the states.
12.1.2005 6:27pm
Gordon (mail):
One of the implicit points of Levinson's article, and the viewpoint of the 1992 Casey plaintiffs I mentioned earlier, is that if Republicans kept to their "extreme" positions on abortion, they would be in no position to impose anything on states because they would be a long-term minority party out of power.
12.1.2005 6:40pm
Education in the Obvious:
"...if Republicans kept to their "extreme" positions on abortion, they would be in no position to impose anything on states because they would be a long-term minority party out of power."

Maybe, maybe not.

Perhaps more accurate than my previous post: Both parties, operating nationally, will have political incentive to impose a national solution. There will be very little incentive for either party to risk the benefits that a running on a national platform brings by allowing ideological disagreements, on an issue with as much political power as abortion, to be settled on a local level.
12.1.2005 6:50pm
Just an Observer:
Ironically, these two liberal professors are discussing whether they should abandon Roe v. Wade at a time when the other side has largely thrown in the towel.

Republican leaders have run away from Samuel Alito's 1985 statement that the Constitution does not protect a right to abortion. President Bush has refused to take a position for a reversal of Roe. William F. Buckley said in a recent essay that the decision will not be reversed. Even Charles Fried, who argued the Reagan-era briefs against Roe, now says it will not and should not be reversed.

Except for a few conservative bloggers, no one even makes the case anymore.
12.1.2005 6:53pm
Gordon (mail):
And if the Republicans stayed in power despite a strong anti-abortion position, then they would be, in fact, representing the will of the majority.

At that point, we would have a situation, similar to Raich v. Ashcroft, and the current Oregon assisted suicide case, with the "states rights" folks being on the left and the "national power" folks being on the right. Since I consider myself a person with a consistent federalist philosophy as represented by the Lopez and Morrison decisions, I would find that any attempt by a Republican national government to impose abortion restrictions on states such as California and New York with presumably liberal abortion laws to be a violation of the Commerce Clause.

As an aside, the hypocrisy of the nation's politicians on the federalism issue - on both sides of the political spectrum - is breathtaking.
12.1.2005 7:01pm
Tom Anger (mail) (www):
And if the Republicans stayed in power despite a strong anti-abortion position, then they would be, in fact, representing the will of the majority. I don't know whether that's a plus or minus to Gordon, but the "will of the majority" cuts no ice with me. The "will of the majority" seems to favor such economically destructive, dependency-creating programs as Social Security. The "will of the majority" -- shaped by biased media coverage -- would seem to point to an ultimately disastrous cut-and-run from Iraq. Since when did the self-interested, uninformed "will of the majority" have anything in particular to do with what is moral and right? The Framers, wisely, tried to keep the "will of the majority" from tearing down the restraints upon which liberty depends.
12.1.2005 7:22pm
Wintermute (www):
Having finally read Randy Barnett's law review article on the Ninth (and Tenth) Amendment, I am more inclined to let Roe stand as an epochal assertion of a natural right which I seem to recall was (incidentally but meaningfully) not prohibited by any of the ratifying states at the time.
12.1.2005 8:27pm
Education in the Obvious:
And if the Republicans stayed in power despite a strong anti-abortion position, then they would be, in fact, representing the will of the majority.

The will of the national majority, perhaps. (depending on how you view the effect of "safe districts" etc. on any notion of "representation." More like "the will of rulers, as checked by those whom have been previously selected as maximally sharing a single ideology." But that's just a rant, beside the point.)

The "return to the states" argument in the abortion context is not the same as "return to democratic will." It's thrust isn't so much in the role of judicial enforcement of unenumerated rights and the democratic will. If it is, then it runs into the arguments about tension between rights being justified by and secured to individuals, and the role of individual rights in a majority-rule democracy. (e.g. Tom Angry.)

"The return to the states" argument is that, when discussing government involvment in moral issues, the jurisdiction of the governed is best measured by its ability to generate consensus. Whether or not it should be resolved judicially or legislatively at that level is a different question. And whether or not a party does/n't screw up to the point of losing safe seats on the federal level is also beside the point of the nexus between government power and consensus in moral issues.

I think that you and I probably agree on federalism. It just seems apparent that state solutions are an unlikely consequence of overruling Roe-Casey, and thus should carry little weight in abortion arguements. (Assuming that Wickard-Darby-Raich etc. isn't going anywhere.)
12.1.2005 8:35pm
Education in the Obvious:
My pseudonym refers to what I learned from reading the linked debate... I should really learn to check my spelling, grammer, contractions, etc. before I use a name that people might construe as me thinking I am arrogently teaching. I didn't mean to lecture you about federalism, we probably agree.
12.1.2005 8:38pm
ANM (mail):
It's quite ironic that the professors do not take much issue with Roe, and that the working classes are "voting against their interests."
The only valid problems I see is a federal usurpation of power, and restrictions on scientific research (NOT de-funding, for, as Thomas Jefferson said, "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical.")
And no, this issue ideally should not be settled by the "will of the majority." That is an extreme copout on any issue.
12.2.2005 12:30am
Houston Lawyer:
Levinson was my Con Law professor over 20 years ago. His primary concern is not abortion rights but the rights of homosexuals. He appears more than willing to throw the abortion right overboard since he believes that that will hurt the Republican party and will benefit the Democrats, who are pushing to adopt SSM. I see that his reasoning hasn't improved with age.
12.2.2005 10:31am
Gordon (mail):
My point about the "will of the majority:"

If abortion is NOT a constitutional right, then it, like all other non-constitutional issues, is subject to the "will of the majority" as expressed through the legislative and executive branches of government.

Only if abortion is constitutionally protected does the will of the majority become, in large part, irrelevant.
12.2.2005 11:24am
AppSocRes (mail):
The two debaters share two misconceptions commonly held by the Democratic Party's base: (1) That abortion is the main "value" issue keeping the Democrats from once again being the majority party. &(2)That the Democrat's position on abortion is closer to the public's view than the Republican Party's.

The Democrats are forced by their funders -- government employee unions, trial lawyers, the gun control lobby, radical environmentalists, anti-defense groups nostalgic for their Vietnam War salad days, and other such fringe groups -- to espouse any number of issues that alienate the majority of voters. These funders keep the heirs of the McGovernites in control of the Party and together the two groups ensure that the Party takes positions guaranteed to alienate voters while invigorating the base. The steady decline in party membership and control of elective offices demonstrates this.

On abortion the official Democrat position is completely out of whack with public opinion. When you honestly analyze the data, over 3/4 of Americans want abortion illegal or strictly controlled. Opposition to unrestricted abortion is greater among women than men and among older persons than younger. The numbers -- even the age-specific dis-approval rates -- are surprisingly constant over the course of nearly four decades, suggesting that as people mature their desire for limiting abortions increases.

I'm limiting my discussion to politics, but a strong case can be made that Griswold v Connecticut, Roe v Wade and the decisions in between are in fact just as demented and free of constitutional merit as, e.g., Plessey v Ferguson. The tortured reasoning behind these decisions matches Taney's convoluted 100+ page defense of the indefensible.
12.2.2005 12:18pm
JJV (mail):
Whether or not some conservative commentators want Roe to be overturned says nothing about whether the Court will overturn it. Roe was not built in a day. It will not be overturned in a day. What will occurr is that if reason returns to the Courts, Roe will be continually undercut, as Plessy was before Brown, and eventually all that will remain, at best is the smile when the entire Cheshire opinion has dissapeared.

Democrats may want Roe overturned, as I agree the initial reaction will be quite favorable to them, but liberals should not. The idea behind Roe supports a radical individualism and relativistic statement about the human person that, if endorsed as part of our Constitution, immeasurably aids them on a host of intellectual fights. If it goes, much of the cultural/legal support for abortion on demand, destruction of other enacted laws on the nature of family and sexuality, and even the sameness of men and women will be undermined with it. The statement "Abortion is a Constitutional Right" has been worth many divisions in the culture war. With it removed, flanking movements against the Left,now forestalled can proceed.
12.2.2005 12:43pm