Preserving The Constitution Is The Real Goal

A lot of people in the media are framing the Miers debate is terms of Pro-Life forces versus Pro-Choice forces, mostly because the abortion issue has become one of the most contentious between Conservatives and Liberals. But the bigger picture here is the circumstances that led to Roe v. Wade, which goes beyond the issue itself. Were Roe to be overturned tomorrow, abortion would not be illegal although it could be made illegal in a particular State. What most people on the both sides forget is that without Roe, the matter of abortion regulation simply returns to the jurisdiction of the States. Consider that there is nothing in the Constitution that addresses a "right to abortion" (or even a "right to privacy" for that matter). Now put this into the context of the tenth amendment that reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And less Federal control over our lives is a good thing. However, adding a "right to abortion" is possible by the mechanism intended by founders: the amendment process, which is subject to popular will. This is also a good thing. Given today's climate of opinion, it's a safe bet to say that a small number of States would completely outlaw it, another small number would completely legalize it and the remainder would likely enforce some limits on the practice. In fact, the State of Connecticut actually has a law on the books that would "kick-in" should Roe be overturned, leaving abortion completely legal in most cases.

Wherever you stand personally on the issue of abortion, the fact remains that the reason that Roe is the law of the land today, is because five men in black robes decided that it should be. In the same way, they decided in Kelo v New London that any level of government (despite the fifth amendment) actually has a right to seize your property if they think they can make more tax revenue from another owner - like a shopping mall. The justices threw out the Constitution and gave the government more power without the consent of the governed. Because they said so. This a terrible thing.

When a justice is considered an "originalist" it doesn't mean that they're "anti-abortion". It means that they believe that the Supreme Court does not have the right to create new law out of whole cloth just because they say so. This power was not given to the judiciary in the Constitution. Yet the Court is asserting that power anyway.

The only way to change this is to appoint more originalists to the Court. And those opposed to Miers want someone that they believe will not change in their judicial philosophy. I get that. While President Bush may believe this about Miers, the burden is on Miers to convince the Republican members of the Senate, since she has no track record of demonstating one philosophy or the other. Whether she is Pro-Life or Pro-Choice is irrelevant. How she views the Roe decision in the context of her judicial philosophy is. And if Miers opponents aren't convinced that she is an originalist and that she will always be an originalist, then they will be justifiably disappointed and angry.

However, I'm still in the camp that believes Miers should be given her hearings. I'm not a "loyalist" as Captain Ed would define that term. The importance of this appointment is not lost on me. My point is that if a nominee is going to be accepted or rejected, let it be done through the process of "advice and consent" by the Senate rather than as a means of satisfying a particular constituency. This is after all what the Founders intended.

Posted by: Gary at 09:55 AM | No Comments | Add Comment
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