Thursday, July 21, 2005

Roe Ruckus

A new poll shows that 74% of Americans think that it's appropriate to question John Roberts on his view of abortion. Whether or not it's appropriate, however, I think the question is largely irrelevant.

I'm not all that interested in Roberts' personal view of abortion. It might be interesting in that it would tell me some things about him as a man, but it's not all that important for his job.

Why not? Because the only thing that matters on the Supreme Court is what his view of the Constitution is. The proper question is not what he thinks of abortion, but rather if he thinks abortion is included in the Constitution as a right.

From my perspective, it would be infinitely more preferable to have a justice who personally likes abortion but recognizes that it is not a right enshrined in the Constitution than it would be to have a justice who personally thinks abortion is a moral outrage but believes it's a guaranteed right under the Constitution. And a savvy pro-abort would prefer to have the guy who personally hates it but believes it's a constitutional right. Because all that matters is how the nominee would rule.

For all the wailing and gnashing of teeth from the abortionistas, even if the Supreme Court were to overrule Roe v. Wade tomorrow, it's unlikely that abortion would be made illegal anywhere any time soon. Pro-lifers would still have the hard work ahead of convincing their fellow citizens that it ought to be made illegal again through the legislatures. That will be no easy task in a culture in which most people have either had an abortion, paid for one, or are close to someone who has. All overruling Roe would do is return the question back to the political process, where it belonged all along. It would simply take the issue of abortion out of the realm of judicial edict and return it to the regulation of the people.

So for my own part, I have no more than a passing interest in John Roberts' personal views on abortion. I have a great interest in is his views on what the Constitution does or doesn't say about abortion. Anything else simply blurs the real issue. A real originalist, someone who believes in the Constitution as written cannot honestly support Roe v. Wade, whatever his personal view on abortion. Even most honest liberal legal scholars will admit this.

Whether Roberts believes Roe v. Wade is bad constitutional law means everything and will tell us a great deal about his method of interpreting and applying the Constitution. Whether Roberts personally believes abortion is right or wrong might be interesting, but tells us nothing about what kind of justice he will be.

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