Judge Sam Alito on Abortion compared to Some Liberals
Yesterday much was made of Alito's 1985 statement that "the Constitution does not protect a right to an abortion"
This last weekend at the Federalist Society meeting, Cass Sunstein made some brief remark about Roe not being rightly decided. But here are some other quotes that I have:
Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).
Jeffrey Rosen — Legal Affairs Editor, The New Republic
“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
….
“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”
“Worst Choice” The New Republic February 24, 2003
John Hart Ely — Yale Law School
l
Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
….
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”
“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).
Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court
“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
North Carolina Law Review, 1985
UPDATE: One should always consider that ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This last weekend at the Federalist Society meeting, Cass Sunstein made some brief remark about Roe not being rightly decided. But here are some other quotes that I have:
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).
Jeffrey Rosen — Legal Affairs Editor, The New Republic
“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
….
“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”
“Worst Choice” The New Republic February 24, 2003
John Hart Ely — Yale Law School
l
Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
….
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”
“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).
Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court
“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
North Carolina Law Review, 1985
UPDATE: One should always consider that ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
posted by John Lott at 12:22 PM
2 Comments:
The US Constitution does not specifically protect a great many rights - that does not, however, mean that these rights do not exist!
The primary failing of this type of reasoning is the incorrect assumption that the US Constitution was created specifically to protect certain rights. It was not! It was created to impose specific limits on the powers and abilities of the proposed Federal Government. It is ridiculous to think that if a 'right' is not enumerated as being specifically protected within the Constitution, that is does not exist. It is equally ridiculous for a 'justice' of any court to think that they have been empowered with the authority to interpret, clarify or define the US Constitution. They have no such powers!
There are two points here. 1) My point in posting this that there is a certain inconsistency in the standards used to judge someone like Alito and similar statements made by others. 2) Your point that the constitution limits government, but not the rights of individuals. As the ninth amendment points out: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' It is possible that they could argue that there is right to privacy in the ninth amendment, but that would be politically unpopular. I do agree that the ninth amendment is important and that it should be involved in serious constitutional discussions.
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