Keeping the Republic
To follow up on Steve Soto's post calling for a filibuster, I'd like to tell you why I believe the Times is right when it finds "frightening" the prospect of Alito joining the Supreme Court.
In my view, the Alito nomination is a watershed event in the constitutional history of the United States, although not necessarily, or only, because of the abortion issue. The risk to a woman's legal right to choose -- and the broader pillar of personal privacy rights on which that right rests in the United States -- is only one of the individual freedoms from Government intrusion that is now up for grabs in our closely divided Supreme Court. Because all individual rights guaranteed in the Constitution are at risk, so also is the fundamental constitutional framework itself, the framework upon which our democracy and republican form of government depend.
This is not to minimize the abortion rights issue. Rather, it is to explain why Alito's nomination carries heavy implications for all Americans regardless of their views about abortion.
Abortion, of course, is one of the hot button issues raised by Alito's nomination. As they always have, feelings run high on all sides but reading about abortion is a turn-off. Most of us are very uncomfortable even talking about it.
Abortion rights is not just an abstract issue of law and medicine and ethics, but also an intensely personal subject. The abstract nature of the issues collides with our personal sentiments about babies, the joys of parenthood, and our concern for families when they are in crisis. Discussing the issue means inviting debate about one's religious, ethical, and political assumptions -- adopted myths, many of them -- to which we firmly hold as a way of making sense of life even as we may acknowledge, deep down, that they cannot be rationally proved or scientifically examined.
A friend -- a very pleasant, older, conservative Republican woman -- in conversation a couple of years ago let it be known to all within earshot that she was morally opposed to abortion in all circumstances. No ifs, ands, or buts. Her outspoken views closely tracked those of the religious right, although she is not quite a fundamentalist herself.
Then her adult daughter became pregnant. It was not a good time for her. The pregnancy was part accident, part the product of spousal rape. She had been struggling for years to leave the man because of his long-standing, chronically abusive behavior. She was terrified of losing her modest-pay job and her hard-won independence, her ticket to personal freedom. For medical reasons, moreover, continuing the pregnancy to term was likely to worsen her fragile health.
The mother quickly came to the aide of her daughter, arranged and paid for the abortion at a first-class facility, and stood by her daughter throughout the ordeal. Now, the older woman, once so outspoken against abortion, does not speak of the subject to others. It is unmentionable because she now sees abortion in a different light that calls into question much of what she had once believed.
Whatever one's views about Roe v. Wade, this much cannot seriously be disputed: regardless of law, religious faith, or the state of medical knowledge, abortion is a practice which always has been with us at every stage of human civilization from Antiquity to the modern day. (M. Riddle, Contraception and Abortion from the Ancient World to the Renaissance, Harvard University Press, 1992). There is every reason to expect it will continue to be that way.
Exact statistics are hard to come by, particularly from countries where abortion is highly restricted or illegal. National laws and medical reporting vary widely. Governmental statistical gathering is not uniform. Consequently, compiling data about the incidence of illegal and legal abortions is, not surprisingly, a daunting task that requires careful adaptation to local conditions, laws, and customs.
Neverthless, revealing statistics have been compiled by the World Health Organization (W.H.O.) from government sources, private medical providers, known hospitalizations arising from abortion complications, etc. The best estimate of medical researchers together is that "approximately 46 million abortions were performed worldwide in 1995. Of these, about 26 million were legal and 20 million illegal."(Henshaw, Singh and Haas, The Incidence of Abortion Worldwide, International Planning Perspectives (1999).
The Guttmacher Institute has published on the web a helpful summary from the most reliable worldwide studies by W.H.O. and others that we have. (Induced Abortions Worldwide). Despite great variations in national customs and laws that range from unrestricted access to outright prohibition of abortion in all circumstances, the incidence of induced abortions appears surprisingly similar in most cultures. Local laws appear to have largely a marginal effect.
Two striking variations in the incidence and consequences of abortion do leap out from the data:
(1) The incidence of abortion is closely correlated to the availability and affordability of contraceptive methods. As the Guttmacher summary shows, where family planning education and contraceptive methods are widely available and affordable, abortion rates decline dramatically. "Women using a method of contraception are only 15% as likely as women using no method to have an abortion."These and other facts compel the conclusion that foreclosing the legal right to abortion in the United States would accomplish little more than raising the mortality rate of American women of child-bearing age. Substantially restricting or even eliminating access to legal abortion, as Alito made clear he fervently wanted to do long before he became a judge, will not change other circumstances of a desperate women's life except to make abortion a crime, and medically unsafe.
(2) Maternal abortion mortality is "hundreds of times higher" where abortion is tightly restricted or illegal.
As the older mother of my acquaintance illustrates, biology trumps religion, personal realities trump law. No number of Alitos can change that.
Legally speaking, the practical question Alito's nomination raises when it comes to abortion rights is simply stated: Whether women in America should be allowed reasonable access to 'safe and legal' abortions by relatively skilled practitioners in a medical setting; or, whether they will have to resort to back alleys and coathangers or their equivalents, as in times past. (Messer and May, Back Rooms: Voices from the Illegal Abortion Era, St. Martin's Press, 1988).
Even with an Alito on the court, politically it seems unlikely to some that the Supreme Court will flat-out reverse Roe. As Eyal Press wrote recently, in a warm remembrance of her father's "abortion war":
In reality... overturning Roe v. Wade will not end the abortion conflict. It will probably transform it from one battle into 50 smaller ones raging across the states. Women who thought they had secured a right several generations ago would have to fight for it again. In the meantime, the least privileged (those who live in remote areas, those who can't afford to travel) would face barriers to access far more restrictive than those in place in many states today.In other words, Alito's confirmation likely would transform abortion rights into a local rather than a national issue. While this would reignite local passions, protests, and the inevitable occasional violence, it would not end the lawfulness of the practice altogether. In any event, legal or otherwise, abortion will always be with us.
Many believe that Roe is more likely to be chipped away at over the next several years than overturned.
So far as abortion rights themselves are concerned, bad as it is adding Alito to the Supreme Court may not be the worst of all possible outcomes. But even a gradualist approach, such as Alito advocated during the Reagan administration, would tear a huge hole in the Equal Protection Clause of the Fourteenth Amendment.
It is more disturbing that to reach the result an Alito court faction likely desires, the Court would have to tear up the rest of the Constitution as well.
Legally speaking, Roe v. Wade and precedents like Griswold v. Connecticut (1965), stand for a broader proposition than the right of a woman to choose to carry a fetus to term, or the right of a physician to dispense contraceptives free from the threat of criminal prosecution. Underpinning all such cases is the constitutional proposition that every American should be free from unwarranted Government intrusion into his or her personal life.
That is one of the essential rights at the heart of the Constitution as conceived by our Founding Fathers, including "the father of the Constitution" himself, James Madison. It used to be a guiding principle that united conservatives and liberals. Today, the "conservative" label has transmogrified into something entirely different in America, something profoundly antithetical to the very founding principles of our nation.
Madison and most of his colleagues in Philadelphia thought individual liberty was rooted in natural law. The freedoms associated with liberty they viewed as immutable and belonging entirely to the people.
Man is born with natural rights, the Framers of the Constitution believed. Some portion of those rights is, by Man's consent, surrendered when he agrees to form a Government. What is not expressly surrendered, however, remains with the people. Therefore, no Government acts lawfully when it assume powers the Constitution has not expressly granted to it.
As a group, the Framers agreed with this Lockian view of the social contract. They also embraced Baron Montesquieu's thesis that liberty and property are best protected by separating Government powers into three distinct and independent branches consisting of the legislative, executive, and judicial.
Initially, Madison and a majority of the Framers were content that by adopting a Constitution which expressly granted Government only limited powers, and which further divided those powers into three distinct branches of Government, the freedoms of people in the infant United States would be assured. To the argument of Patrick Henry and other anti-Federalists that the new Constitution should include an express guarantee of essential individual rights, Madison demurred.
His concern was that later generations might misunderstand and wrongly conclude that those rights were the only ones the Founders intended to be retained by the people. Consequently, the Framers of the Constitution in Philadelphia initially opposed all proposals to incorporate a bill of rights into the Constitution.
But the distrust of others over the newly proposed Constitution's stronger federal government led many "Anti-Federalists" to continue to insist on a bill of rights as a condition for ratifying the proposed Constitution. Eventually, Madison saw the political necessity of adopting a stated series of fundamental rights guarantees in the form of amendments to the Constitution.
There is some evidence, according to scholars like Joseph Ellis in Founding Brothers, that it was Jefferson who first suggested to Madison that the initial objections to a bill of rights could be overcome by adding to that list of individual rights a statement that the enumeration of some rights of the people was not to be understood to exclude others. The suggestion assuaged Madison, and he eventually promised to shepherd a Bill of Rights through the first Congress so long as it included what became the Ninth Amendment, clarifying the intent of the Framers that other residual rights not mentioned remained with the people.
As the late Justice Arthur Goldberg wrote, instead of articulating a specific 'right' the Ninth Amendment was intended more as a "rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement."
As a "rule of construction" the Ninth Amendment offers a clear window into the intentions of the Framers. That intention, as is plain from the very way the Constitution was structured as well as the plain text of the Ninth Amendment, favored limited federal power over the individual and an expansive understanding of individual rights.
This is why the confirmation of Sam Alito could well become a milestone along the path of decline of the America we know and love. Judge Alito was selected by a president who plainly believes in a hugely expansive executive branch of Government, one which exercises virtually unlimited powers of Government over the individual, even though never expressly granted to it. This presidential power, in Bush's view, embraces even the power that Congress has granted to the judicial branch (such as the power to authorize wiretaps on a showing of probable cause) or even those which Congress has deliberately denied to the president, as Glenn Greenwald points out elsewhere.
The recent history of Supreme Court appointees shows there is always a chance that a new justice may evolve on the bench and surprise a president's expectations. As Ed Lazarus wrote last year in the Los Angeles Times (with a dose of snarkiness):
"Political surprises on the Supreme Court occur for three reasons: Presidents misapprehend their nominees' views. Justices remain fundamentally true to their judicial philosophies, but issues facing the court change around them and thereby create the impression that they have altered their politics. Finally, the majestic power of the court seduces some justices away from their political moorings so they can better serve as a moral beacon."Of the three reasons Lazarus identifies for judicial 'surprise' only the second seems likely ever to touch Judge Alito. His written record as a loyal lawyer-soldier in the Reagan administration combined with his thoroughly pro-corporatist, pro-Government and anti-consumer, anti-individual rights record for 15 years on the Court of Appeals offers no cause for thinking the Bush administration has 'misapprehended' Alito's fundamental philosphy. Nor does it seem plausible that his philosophy suddenly will change after these past 29 years.
New constitutional issues barely foreseen in our day could tempt Judge Alito into terra incognito. What issues might they be? It's a good bet we're seeing them born right now.
As Dick Durbin said yesterday: Alito "will tip the balance of the scales of justice. He will tip the balance against protecting our basic privacy and personal freedoms. He will tip the balance in favor of presidential power even when it violates the law."
The Bush administration has begun to openly assert Government omnipotence over all aspects of individual American life. More than that, it is asserting that all federal power resides with the Executive. Just this week, Bush has begun advancing the proposition in public speeches that any president acts lawfully whenever he declares that a congressionally enacted law or even a constitutional constraint doesn't apply to him.
Today, it's the Government's (read: president's) claimed power to torture enemy soldiers at home and abroad, to hold citizens and non-citizens alike in jail indefinitely on mere suspicion, and to wiretap American citizens in their own homes without a warrant issued by an independent judge upon probable cause. Tomorrow, it may be the president's power to censor speech or the press; to seize private property without just compensation; to work a "corruption of the blood" for the benefit of corporate creditors or on pretext for the national economy; to establish religion; or, to cancel elections because of a claimed national emergency. A Government that has the constitutional power to prohibit abortions directly or permit State Governments to do so, by the same token has the constitutional power to compel them, as with China's one-child-per-couple law.
A president that has the constitutional power to ignore the Constitution is no longer the leader of a free country, but a dictator. Once that power is declared the law of the land, there is no law whatsoever except whatever the president of the day decides is needed or wanted.
That is not what our forefathers intended when they ratified the Constitution and, in words attributed to Benjamin Franklin, formed "A Republic, if you can keep it."