Friday, July 01, 2005

There's no such thing as a "pro-choice, limited-government" Judge

Justice Sandra Day O'Connor has announced her retirement, and it has set off a predictable round of speculation as to who will be her replacement. In the more libertarian wing of the blogosphere, some have suggested candidates such as Judge Kozinski of the 9th Circuit Court of Appeals, or Professor Eugene Volokh or even the grand old Professor Reynolds himself. The consensus among the libertarians seems to be that pro-choice judges would be better at restoring Constitutional rule in America.

Hardly. To put it simply, there's no such thing as a "pro-choice, limited-government, original-intent" Judge. Roe v. Wade was not only an unconstitutional decision, it was an anti-constitutional one; by removing any state authority over regulation of abortion and creating a "right to privacy" where none existed, it greased the skids for later expansions of federal authority like Lawrence and Raich. After all, if states no longer have the right to regulate abortion, which had been illegal in most of America for the first 150 years of our Constitution's existence, how could they then have any authority to regulate purely intrastate commerce in pot?

The best indicator of this is the voting record of the current Supreme Court. Time and again, the justices who are the most pro-life (Rhenquist, Thomas, Scalia) are the ones who are also the most pro-state's rights. With all due respect to Professors Volokh and Reynolds (either of whom would be an overall improvement over Justice O'Connor), you can bet that the more pro-choice a judge is, the more pro-government he (or she) is.

You want smaller government? Nominate Pro-Life Judges.

UPDATE: It figures. I get Instalanched on the very day I reformat my hard drive and reinstall all my software. I was going to make this post longer and more detailed, but I just wrote it up quickly and got it posted. Oh well. As the saying goes, always put your best foot forward, and all that.

Welcome to the Warren, please check out the archives, and thanks for dropping by.

UPDATE UPDATE: More thoughts here.


At 2:59 PM, Anonymous Anonymous said...

If that's true, then how do you explain Scalia's concurrance in Raich v. Ashcroft?

At 6:08 PM, Anonymous Anonymous said...

Anonymous has a point there.

Besides which, the right to privacy did not have to be invented. The Bill of Rights was specifically not intended to be an exhaustive list of all rights. The right to make medical decisions about one's own body is inherent in the right to life, liberty and property. It is for the anti-choice crowd to explain why rights should pertain to the unborn. We are not inventing rights, they are inventing persons.

At 6:45 PM, Blogger Greg D said...

I'd put it slightly differently:

Anyone willing to see a "right to privacy" in the US Constitution is capable of "seeing" anything they want in there. Power corrupts. I dont' care how pro-limited governmetn someone starts out, after 20 years of being on the Supreme Court they're going to think they're wonderful people with a great understanding of the world around them. If they don't believe in strict, rigorous limits on their power, they're going to want to "fix" things.

Irregardless of whether or not it's their job to fix them.

If you want limited government, then you want people with power to believe that there are strict limits on their power. No Justice who favors Roe is going to believe that.

At 7:36 AM, Blogger Steven Horwitz said...

Since when did "limited government" become the same as "pro-states' rights?" One might be pro-FEDERALISM in claiming the unconstitutionality of Roe, but seeking to defeat Roe and allow STATE governments to have a great deal of power over women's reproductive choices hardly qualifies as being in favor of "limited government." After all, states are governments too, no?

At 7:59 AM, Blogger Captain Holly said...

I should have specified "limited Federal Government". And I think everyone who supports the concept of federalism can agree that the Feds have gotten too big for their britches. I think that Roe was a big part of that expansion.

Greg said it better than I did. It's the philosophy behind Roe, rather than the law itself. Up until 1972 no one felt that states restrictions on abortion were unconstitutional; suddenly, an inviolable right to abortion was discovered. It's inconceivable to think that was the intent of the Founders.

BTW, thanks for your thoughtful comments.

At 10:42 AM, Anonymous Sam M said...

If you want limited government, then you want people with power to believe that there are strict limits on their power. No Justice who favors Roe is going to believe that.

Roe was a decision that imposed limits on governmental power. It prevents all governments (including the federal government) from restricting an area of personal freedom.

The Roe issue is not one of limited v. big government. It's an issue of the proper role of the judiciary within government, vis-a-vis the political branches. The interpretive method used in Roe can be (and often has been) used to strike down exercises of governmental power; it is thus odd to assert that one cannot believe in Roe while still believing in limited government.

Roe is most assuredly non-originalist. And it may be anti-democratic. But it is not a brief for "unlimited government."

At 12:40 AM, Blogger Greg D said...


"Justices" who support Roe believe their is no limit on their power. They consider themselves above the written US Constitution, above Democracy, above the rule of law. They believe it is their "right" to take power from "We The People", and arrogate it to themselves.

They are part of the Federal Government. By increasing their power, they increase the Federal Government's power.

So your argument makes no sense. Before Roe, the Federal Gov't had no say about abortion. After Roe, it did. Therefore Roe increased the power of the Federal Government.

At 10:44 AM, Anonymous Sam M said...

By increasing their power, they increase the Federal Government's power.

That is obviously wrong. Yes, they increase their power, but if it comes at the expense of an exercise of power by one or both of the other federal branches, then there is no net increase in federal power.

Moreover, even if there is a net increase in federal power, housed in the chambers of the Court, that can represent a net decrease in governmental power. The point to which I responded conflated two different things. First, you said that "If you want limited government . . . ." My answer: Roe was a decision that produced (more) limited government than existed before Roe. Then, you added, "you want people with power to believe that there are strict limits on their power."

While that may be true as a generalization, it is not always true. If the Court asserts the power -- outside "strict limits" -- to limit other exercises of governmental power, then it is a take-with-one-hand, give-with-the-other situation. And the personal freedom from governmental regulation/intrusion that Roe required results in limited government, even when you take into account the enhanced role of the Court.

When the Court starts using that power to limit personal freedoms (e.g., the medical marijuana case), then you might be able to make a case that too much power for the Court is a threat to limited government.

At 12:51 PM, Blogger Captain Holly said...

The problem is, abortion was never a federal issue prior to 1972. It was a state issue, and different states legislated it according to the desires and mores of their citizens. Classic Federalist model.

The majority in Roe took a state issue, federalized it, and imposed their will on the rest of America. Now, you can say that this was right and proper and even constitutional, given societal evolution (or devolution) since 1787. But it certainly wasn't the original intent of the Founders.

I'm not a hard-core pro-lifer; I recognize that there are times when abortion is a last resort, an unpleasant necessity. I'm perfectly willing to allow the people of New York legalize third-trimester abortions IF they allow the people of Utah to require parental notification. Otherwise, I consider it to be an infringement on MY religious freedom.

Ironically, the abortion issue will probably return to the pre-1972 conditions within the next 15 years. As I noted in a newer post, pro-choice Americans don't have very many children; pro-lifers do. I predict we'll hit the demographic "tipping point" by 2020.

When that happens, the pro-abortionists may rue the day they ever federalized the issue.


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