Polispeak: March 2006: Archives

March 5, 2006

Judicial Activism Exposed genre: Polispeak

The nomination of Samuel Alito to the Supreme Court, as well as any subsequent appointments creates a dilemma not recently witnessed in the course of American judicial history. The heightened level of consequence is well framed by the issue of abortion and the case of Roe v. Wade. Over the years, decisions made by the Supreme Court have generally granted additional rights and a generally more flexible interpretation of the Constitution. Examples include the repeal of prohibition, voting rights for women and blacks, integration, and affirmative action. Proponents of such decisions argue that the Constitution, albeit a document of arguably unequaled forethought, could not be expected to address all the issues that might occur over the course of time. They also argue that the court must often act to insure the rights of minorities in the absence of support by the majority.

Today, with the preference by many to appoint jurists with a strict constructionist view, we have entered a period one could characterize as a reversal of direction…a move towards limiting the expansion of the Constitution and its interpretation to primarily stop or undo the expansion of secular social issues. This confluence of issues is troubling and has significant ramifications. Complicating this crescendo is the fact that the basis of the arguments being made by the opposing sides have also, to a degree reversed. Many former states rights combatants have become more centralized federal government proponents and visa versa…although this is often applied issue by issue rather than as a fundamental theory of government. Examples that demonstrate this reversal include the issues of abortion and gay marriage. Opponents of abortion prefer a states rights interpretation while at the same time support an amendment to the United States Constitution to ban gay marriage. The opposite preferences are found amongst those that support abortion rights and gay marriage.

Both sides increasingly see the judiciary system as a political tool to be manipulated in order to obtain a favorable outcome. The calculations are often made issue by issue after evaluating the potential court systems at play. Simultaneously, the feasibility of the states rights theory diminishes each day as the relevance of individual state borders are overwhelmed by a rapidly expanding interstate connectivity. Specifically, with Roe v. Wade, opponents argue the ruling should be overturned since it was wrongly wrestled from the appropriate legislative grip of a state by state resolution whereby the people, through majority vote, elect legislative bodies to then pass laws that reflect the will of the majority. This approach, although feasible and consistent with much of our historical process, runs counter to the growing conflation of the states.

Once this background noise is acknowledged, the debate must shift to an analysis that is driven by the considerations of outcome. Legal and constitutional principles notwithstanding, the results of a state by state definition and determination of abortion rights and gay marriage become the necessary focus. Ultimately, by whom and how would the mechanics be applied and administered? Would a woman impregnated in Utah, where abortion is illegal, who travels to California, where abortion is legal, be charged upon returning to Utah with a crime if she had an abortion? Would a doctor with a practice in multiple states be charged with a crime in a state where abortion is illegal if he in fact performed abortions in another state where abortion is legal? Would either of the partners in a gay couple from Massachusetts traveling through Arkansas be allowed access to their partner if they were in an automobile accident and one became incapacitated and unable to make medical decisions? What happens when a gay couple in Vermont, where one is HIV positive, and the health insurance he has is by virtue of the other partner’s employment, must move to another state where such benefits have been prohibited?

Granted many of these details have or can be sorted out and legislated as needed…but if one clearly listens to the goals of those on either side of the issues…this patchwork resolution wouldn’t be satisfactory. To presume that anti-abortion activists living in a state where abortion is illegal would be content to disregard the abortions happening in an adjacent state is absurd. The same is true for abortion proponents. To presume that gays will conclude that equal rights provided by some states are sufficient is similarly absurd. What this analysis seeks to illuminate is that the legality of abortion, despite being considered nationwide settled law by its proponents, will remain an unsettled issue by both sides regardless of the origin of that legality or illegality (Roe v. Wade or state by state). The same argument holds true for gay marriage. To assume the foment wanes once each state is given authority or once a constitutional amendment is passed is antithetical to the issues. If an anti-abortion activist succeeds in his or her state, it doesn’t follow that their belief in an obligation to make abortion illegal everywhere else subsides. Were that the case the longstanding argument that says if you oppose abortion, don’t have one would suffice.

The bottom line is that these issues will not remain confined to state boundaries and those who refuse to acknowledge this are either in denial or merely looking to change the dynamic in hopes of a different final outcome. What this means when returning to the issue of Supreme Court appointments is that while great focus is placed on these appointments, a far more important consideration is not discussed. While the two sides bask in the hope or presumption of victory, the consequences of that victory remain unexplored and absolutely unarticulated. The shimmer of noble nostalgia generated by a return to states rights that is envisioned by many or the vindication and upholding of a judicially settled policy imagined by the other side will likely result in nothing more than heightened conflict and controversy. Hence, the oft protected ideological leanings of appointees is all absorbing but dangerously absent any forthcoming discussion of the possible real world outcomes of their potential decisions. Victory will not be won with the next appointment to the Supreme Court. History tells us abortions and gay couplings will persist despite adjudications. Its time we accept this reality and begin the actual process of an honest debate.

Little thought seems to be given to the rationale behind the separation of church and state that was dictated by the founding fathers. Given sufficient review, one could reasonably conclude that the well crafted governmental model was in fact the result of the debate I’m currently proposing. We can reopen the debate but as long as there are citizens unwilling to acknowledge the lessons inherent in the experiences of our past, we will flail in conflicts that cannot be resolved through judicial manipulation. I would argue that the very type of conflicts identified herein precipitated this countries origin and guided the creation of our constitutional foundation. Religious views and values are legitimate but given the absolute nature of such beliefs, no one government system can assuage all of the belief systems. Further blurring the lines between religion and government cannot succeed. This may mean that the only feasiblee common ground will require both sides to accept the original lines of separation that were used by our forefathers to determine individual freedoms…and likely nothing more or nothing less. For now it would be best if both sides acknowledged this reality.

Daniel DiRito | March 5, 2006 | 11:59 AM | link
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