I Object to Roe

"Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)."

Truth About Roe

What do Alan Dershowitz and Laurence Tribe have in common with Antonin Scalia and Robert Bork? They all believe Roe v. Wade was a bad decision. Dershowitz and Tribe are not the only pro-choice legal scholars who denounce Roe as poor jurisprudence.

John Hart Ely, another pro-choice legal scholar, wrote in 1973 in the Yale Law Journal that Roe was wrongly decided. Edward Lazarus, a dedicated pro-choicer and former clerk to Roe's author, says Roe was borderline "indefensible." Pro-choice Washington Post writer Benjamin Wittes calls Roe "a lousy decision." Slate columnist William Saletan--who left the Republican Party in 2004 because it was too pro-life--has written that Roe was a sloppy "overreach." Pro-choice Washington Post columnist Richard Cohen calls Roe "a bad decision."

The debate over Judge Samuel Alito and the Supreme Court cannot be an honest one until this simple truth is laid bare: Roe v. Wade was a bad Supreme decision, which no honest reading of the Constitution can support.

But to listen to the public debate over Alito, or the Senate debates over John Roberts, you would think that any judge who would reject Roe is only slightly less radical than the people who shoot abortionists. When Democratic Senators and liberal interest groups charge Bush's nominees with being "anti-choice extremists," on the suspicion they would overturn Roe, Republicans weakly respond by saying, in effect, "we have no idea what this judge thinks about Roe." No one challenges the Democratic orthodoxy that Roe is as essential to American liberty as the freedom of speech. In fact, the Republican chairman of the Judiciary Committee has joined in the Democrats' chorus, calling Roe "inviolate" and a "super-duper precedent."

The time has come for Republican senators to stand up and speak the truth about Roe.

To begin, the media could use a crash course on just what Roe did, and what would happen if it were overturned. A Washington Post headline during the regrettable Miers affair read, "Nominee Dismisses Speculation on Roe; On Hill, Miers Discounts Report That She Would Vote to Outlaw Abortions." The clear implication of this headline is that overturning Roe would make abortions illegal throughout America. This is the conventional wisdom. And it is wrong.

Overturning Roe would make abortion like almost every other legal issue in America: a matter for the states. Abortion used to be legislated and regulated on a state-by-state basis, just like speed limits, murder laws, marriage laws, sales taxes, hunting laws, smoking in bars, and prostitution still are. Roe basically ended that in 1973. Overturning Roe would not "outlaw abortion," but would instead allow the elected officials in each individual state to chose for his or her own state whether to ban nearly all abortions, leave it legal in all cases, or limit it in some circumstances but allow it in others.

A second overlooked point is that if Judge Alito is confirmed, and both Alito and Roberts vote to overturn it (hardly a safe assumption given the track record of past Republican Presidents), Roe still will likely stand. There are four hard-core liberals on the bench right now--John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--plus one "swing vote," Anthony Kennedy. In 1992, Kennedy voted with the majority in Planned Parenthood v. Casey, the decision that saved Roe. But Republicans ought not be ashamed that they are threatening Roe. Indeed, the Democrats and Specter ought to be embarrassed to defend it.

I could lay out many arguments here as to why the decision was miserable: it depended on a discarded notion of "substantive due process" in which "process" is read to mean its opposite; Roe is based on "rights" discovered in the "penumbras" and "emanations" of the Constitution; "Roe" is now a pro-lifer, as is the woman "Doe" from the 1973 companion case Doe v. Bolton. Neither woman ever received an abortion. In fact, Doe never even sought an abortion and has always opposed it.

But it is better to let pro-choice scholars do the criticizing. In June, Ethics and Public Policy Center President Ed Whelan went before a Senate Judiciary Subcommittee and read critiques of Roe, many written by people who think abortion ought to remain legal. Most of the following are taken from Whelan's testimony, and include citations. I have bolded the names of the Roe critics, and provided links where possible.

"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." Laurence H. Tribe, "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).

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather." Edward Lazarus, (former clerk to Harry Blackmun) "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them," FindLaw Legal Commentary, Oct. 3, 2002

"Blackmun's [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." William Saletan, "Unbecoming Justice Blackmun," Legal Affairs, May/June 2005.

"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-?-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." John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale Law Journal 920, 935-937 (1973).

Roe "is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply." Benjamin Wittes, "Letting Go of Roe," The Atlantic Monthly, Jan/Feb 2005.

Richard Cohen's critique, in which he called Roe "a bad decision," was in his Post column, titled "Support Choice, Not Roe."

Alan Dershowitz attacked Bush v. Gore as illegitimate by likening it to Roe in his book, Supreme Injustice. He wrote that the two decisions "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes[.] Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)[.] [C]lear governing constitutional principles . . . are not present in either case." (p. 194).

If these men can admit Roe was wrong, surely Republican Senators can. At least a couple of Republican Senators have tiptoed around this question. John Cornyn and Sam Brownback have quietly asserted that reasonable people can object to Roe. It is time for Republicans to do the actual objecting.

Timothy P. Carney is a Phillips Fellow and a free-lance journalist in Washington, D.C.
http://acuf.org/issues/issue48/051118gov.asp

Using Religion

In the same week that saw a spate of anti-Catholic rumination by the media on the nomination of Samuel Alito to the Supreme Court, others along the political spectrum were also concerned with religious matters.

One of these was 2008 White House hopeful Senator Joseph Biden. The Delaware Democrat--whose presidential run in 1987 was tripped up by plagiarism charges--recently took to the hustings of Kentucky to convince voters that he really was one of them. In a state where President Bush beat John Kerry by twenty points in 2004, Biden acknowledged the problem: ?We have put up too many candidates who can't connect with middle-class Americans. In the last two (presidential elections), the Democratic Party has lost its base, the middle-class votes. ... And we have played into the hands of the Republicans. We've allowed so-called social issues to be so divisive."

Apparently he has figured out that one of the issues that divide liberals from folks in red states is belief about religion. Once a dependable part of the ?Solid South? that voted exclusively for Democrats, Kentucky is now a Republican stronghold. Part of the reason is that Kentuckians, like most Americans, take their religion seriously.

In a state that is overwhelmingly Christian, including over half a million Catholics, you?d think someone like Biden who is trying to sensitize fellow Democrats would stay away from comments like, "If I'm the nominee, Republicans will be sorry. The next Republican that tells me I'm not religious, I'm going to shove my rosary beads down their throat."

Mr. Biden?s charming and reverent reference to his Marian devotion aside, his comments illustrate the bewilderment many in his party feel toward why many religious conservatives support the Republican Party. The secular left simply doesn?t comprehend that it takes more than just a politician?s profession of faith to win the votes of those for whom religion is not merely a so-called social issue.

Biden, like many Catholic politicians, tries to separate his religion from his job. And as any Christian should know, this should not be an option. If the two are in conflict, one should renounce one or the other. Biden actually alluded to this logic last year in referring to some Republicans who try to act ?a little like me as a Roman Catholic denying the existence of the Trinity. It is not possible to do.?

What he does find possible however, is to deny other basic precepts of the Code of Canon Law of his religion, such as unalterable opposition to abortion, euthanasia and same-sex marriage; the last of which he calls ?inevitable.? He continues, ?It?s going to be something we have to go through as part of the maturation process of the nation.?

Last year, Biden and his liberal brethren tried to pooh-pooh the abortion issue by claiming they voted ?Catholic? on issues like the death penalty, immigration, gun-control and increasing the minimum wage; none of which are covered by Canon Law. Said Dick Durbin with a straight face, "Unfortunately, recent media attention has focused on one or two priorities of the Catholic Church, while obscuring others."

It seems all wings of the Democratic Party--while still officially endorsing the practice of killing infants in the womb--wish the word ?abortion? would simply disappear. Interviewer Chris Matthews was amazed recently when DNC Chairman Howard Dean even balked at uttering the politically-correct term ?pro-choice?: ?Now, you're getting hesitant on the war and hesitant on abortion rights. It's very hard to get clarity from your party.?

After seven attempts by Matthews to clarify the party?s position on abortion, what was Dean?s final response? ?A woman and a family have a right to make up their own minds about their health care without government interference. That's our position.?

Abortion as health-care and same-sex marriage as a maturation process. These are precisely the types of euphemistic deceptions that only widen the gap between Democrats and voters concerned with so-called social issues.

Meanwhile, back in Kentucky, State Senator and former Democrat Governor Julian Carroll bravely maintained, "If we define who we are, the middle class will vote Democratic again."

They?d better start saying their prayers.

Lisa Fabrizio is a columnist who hails from Connecticut.
http://acuf.org/issues/issue48/051120cul.asp

Who Controls America?

Zionist Lobbies Are Turning The Wheel Of US Foreign Policy

"You tell me America will do this and will do that ... I want to tell you something very clear: Don't worry about American pressure on Israel. We, the Jewish people, control America and the Americans know it."

- Ariel Sharon, October 3, 2001

What made the Israeli prime minister make such utterance without fearing any adverse reactions is the presence of powerful Zionist "lobbies" in the US capable of influencing the actions of politicians and of conditioning public opinion.

In the US, where more than 6 million Jews live, (less than 2 per cent of the total population), the Jewish vote can be an important factor in determining the electoral majority where victory can often be achieved with a very narrow margin.

The strength of the Zionist lobby in the US is so great that US President George W. Bush's speech regarding the need for "Palestinian reforms" was sent to Occupied Jerusalem for final proofing and corrections not less than 28 times.

This shows how biased, or forced to be, the present administration is when it comes to the Arab-Israeli conflict.

For all the turmoil in the Occupied Territories, the US and Israel are in agreement that the Palestinians are to blame, which was aptly demonstrated during a news conference in which Bush proclaimed, "the signal to the Palestinians is to stop the violence. I can't make it any more clear".

The fact that Israel's colonial occupation has continued for almost four decades is irrelevant to Bush. Instead, he seems intent on blaming the Palestinians for disrupting the peace.

This is vital to Israel's public relations campaign. Of course, the Bush administration's support for Israel is more than just verbal.

The president will continue to push for economic and military aid to Israel which has been estimated between $3 billion (Dh11 billion) and $5.5 billion (Dh 20.18 billion) a year.

American vociferous support for Israel and its indifference in the face of Palestinian suffering are a direct result of an "ideological" support that has gripped the US government.

This occupation is based on the internalisation of Israel's arguments vis-?-vis the current conflict.

The success of this ideological occupation is partly the result of the American-Israeli Public Affairs Committee (AIPAC), considered one of the most influential lobbying organisations in the United States.

The influence of this lobby could be seen by the sheer number of policy makers who attend its annual policy conference.

Its last conference of March 2004 was attended by 103 members of the House of Representatives, 43 senators and 15 officials (including secretary of state Colin Powel).

AIPAC's ongoing mission is to nurture and advance the US-Israeli relationship by advocating strong US economic, military and political support for Israel.

The organisation uses its formidable lobbying abilities to maintain the US governments' unwavering support for Israel and to make life difficult for any public official who dares to challenge the statue quo.

In addition, AIPAC is very active on college campuses throughout the US. It has a Political Leadership Development Programme (PLDP) whose goal is to get college students involved in pro-Israel activity.

Basically, AIPAC not only tries to strengthen ties between the US and Israel, its activists also work to intimidate and defame those who are critical of Israeli policy.

Other Zionist lobbies operate in the US albeit less influential than AIPAC.

Involved in espionage

Of those is the Anti Defamation League (ADL), founded in 1913 as an adjunct to the international Jewish secret society known as B'nai B'reth.

While posing as a "civil rights" group, it is deeply involved in espionage inside the US and of controlling sources of news and information.

In addition to ADL, the Committee for Accurate Middle East Reporting in America (CAMERA) is also active in the US.

It deals in Israeli espionage scandals and recently has launched an e-mail, fax and phone calls campaign to force Fox TV to drop its probe of a recent Israeli spy, dope and terror scandal.

The Jewish Institute for National Affairs (JINSA) is another lobbying group. Founded in 1973, it influences the US defence and national security establishment.

These Zionist lobbies are able to conduct their subversive activities with very little governmental or popular resistance.

Nevertheless, as more Americans begin to speak out against the Israeli occupation of Palestine, they must also condemn the activities of institutions such as AIPAC, JINSA and ADL.

Their influence is greatly responsible for the US governments' unconditional support for Israel. Those struggling for a just peace must expose and isolate the pro-Israel lobbies by associating it with occupation, racism and violence.

Professor As'ad Abdul Rahman is the Chairman of the Palestinian Encyclopaedia.
http://www.gulf-news.com/Articles/OpinionNF.asp?ArticleID=190220