How I spent by morning


Reading this testimony given by Ed Whelan of the Ethics and Public Policy Center at Senator Sam Brownback's hearing on Roe v. Wade.

Here are some things I took away from reading it. Most are things I already knew, but Whelan makes the points forcefully

  1. Roe v. Wade is a legal atrocity, based upon a clause in the 14th amendment that states may not "deprive any person of life, liberty, or property, without due process of law." Why this means that states cannot - through due process - enact resonable laws banning or limiting abortion remains a mystery.

  2. The majority opinion in Roe and subsequent decisions supporting it are laughable to read. Laughable that is, except in light of the power-driven egomania behind them. Especially offensive is the majority opinion in Planned Parenthood v. Casey, which implies that our legitmacy as a nation of law abiding people demands that Roe v. Wade not be overturned.

  3. The dissenting opinion in Planned Parenthood v. Casey by Justice Scalia is wonderful. Here are some passages cited by Whelan in his testimony:

    "The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level." 505 U.S. at 995.

    "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees." 505 U.S. at 995-996.

    "The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders.

    ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.

    "Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration … with the more democratic views of a more humble man:

    ‘[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.’ A. Lincoln, First Inaugural Address (Mar. 4, 1861)." 505 U.S. at 996-997.

Scalia writes with grace and humility, basing his decisions on the Constitution. Those who constitutionalized Roe ramble on with vanity.

I encourage you to read the whole testimony.

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This page contains a single entry by Papa-Lu published on July 12, 2005 8:30 AM.

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