« Our Faith-Based Justices? | Main | Résumé lies and signals »

April 25, 2007


Feed You can follow this conversation by subscribing to the comment feed for this post.


But the point of the Constitution and the Courts is not an abstract warrant to protect the desires of minorities. It is to protect their rights, but the rights of the majority and the powers are also protected. There is a balance in our system between rights and government power, government power held by the majority of the representatives of some relevant piece of geography. This is to say, their job is to apply the law.

The law sometimes protects the rights of majorities, it sometimes does not. The question is whether a constitutional right is at stake and whether an enumerated power exists (when federal power is concern).

For example, I'm a minority in many instances, not least in my Catholicism or my level of wealth. I would like all kinds of legislation invalidated or at least not to exist. And I could even describe my interests as rights, such as my right not to be offended, my right not to be exposed to blasphemy, my right not to be taxed more than 10%, my right not to report private financial information to the government. Yet all these things are permitted or imposed because rights talk cannot be used wily nilly to invalidate everything we don't like that legislatures do or don't do.

The problem with some of the newly minted rights under the rubric of "substantive due process" and "privacy" is that they're almost totally open ended, they're ever shifting, and they shift power unaccountably to the courts from the people.

Someone above asks how can legislatures protect the rights of minorities? They can because they know majorities shift. The legislative super-majorities of 3/4 of the original colonies approved the Constitution and the Bill of Rights. Even today, a strong freedom bias pervades our laws, including laws that would encroach upon religion. Even at the height of prohibition , exceptions were made for things like communion wine.

I agree, not every legislature will respect every minority's rights. But it was legislatures, let us not forget, who passed the Civil Rights Acts, the 13th-15th Amendments, laws providing government funding to Indian Tribes, the Religious Freedom Restoration Act, etc.

There is an interest here that even abortion opponents acknowledge above, the interest of the unborn, a group without any political power or power of speech. The "protect the minority" discourse could just as easily be used (and perverted in my view) to mandate government protection for the unborn under the rubric of the 14th Amendment's protection for the right of life. Let's not forget, the humanity of other minorities has been denied to deny their undeniable rights, such as the denial of the complete humanity of blacks to keep them in slavery.

So, when we have a contentious issue like this, with competing rights and competing interests, the standard practice has been and should be to leave these matters to the legislature. Decisions like Griswald, Roe, and all of the Ptolemaic fine-tuning they've entailed in their progeny (ahem!) short-circuit this process and presume to have a final, knowable and definitive answer in the courts that contradicts the society's majority. It's obnoxious and presumptuous for nine people to presume such a thing. The majoritarian aspect of the underlying law in the latest abortion decision is give short-shrift by Stone who is an off again on again proponent of the power of the majority to make laws in areas over which the legislature is empowered.

Stone, legal realist a outrance, could care less about constitutional structure and process. He just cares about liberal results. The rest is subterfuge. This is the essential descriptive and prescriptive contribution of the corrosive legal realist viewpoint that poisons 1Ls and those of other elite law schools so early in the game. This is why the judiciary, populated with so many graduates of these subversive joints, has fallen into such disrepute.

Stone and his buddies' only claim to authority is their certitude of the rightness of their liberal positions. They do not claim (or usually have) unusual virtue, pedigree, martial courage, or any of the other traditional means by which minorities ruled over majorities. It's an aristocracy of opinion and controversial faddish opinion at that.


Eras, "are rejected" . . . wonderful passive voice. Great rhetoric on you too.

It seems to me 90% of the Federalist Papers, Burke's Reflections on the Revolution in France, Polybius, the speeches of FDR and Reagan and others, consist of slippery slope rhetoric of one kind or another. It's true, it's not always the case, but it's a legitimate argument usually responded to by less obnoxious people by showing why the predicted decay will not occur.


"What you and people like Stone refuse to recognize is that the Supreme Court has not "rolled back" anything: it has, in fact, expanded the freedom of the governed to effect their will in the policy process."

Actually, as a matter of fact, the case took what was precedent, a woman's right to decide with her doctor her own health decisions and rolled back that previous right to make private health decisions. Now a woman who was once free to listen to her doctors advice and have the procedure if deemed the safest for her is no longer able to do so no matter what.

When we say "freedom" we are talking about individual liberty you know? To frame this decision as somehow expanding the freedom of the electorate in the aggregate is not only to misunderstand the subject of the debate, our individual liberties under the constitution that trump the tyranny of the majority (or in this case a temporary imbalance of power on the federal level), it is not to recognize that the majority of people in this country actually oppose restricting abortion rights.

Article III and the Supreme Court exist for a reason. The Bill of Rights and the 14th amendment exist for a reason. Perhaps you should reacquaint yourself with those reasons? Reread Marbury perhaps?

Or better, go take Saul Levmore's Public Choice Theory class, and you might have less respect for particular outcomes of one legislative iteration. Sometimes when people are voting on single issues, say, for their safety cause they've been scared shitless, they are, often unbeknownst to them, voting for a whole slew of other issues they may or may not support.

The arguments you advance are the same ones the segregationists did too. Not something of which you should be proud.


The precedent in question was revolutionary, had little basis in the Constitution, and was authored by people that had no respect for prior precedent. It deserves little respect, even if it supposedly authored an individual right. It is no more compelling than Lochner or Dredd Scott or any other precedent that had no bassis in the policies, history, or text of the relevant parts of the Constitution.


"it was legislatures ... who passed ... the 13th-15th Amendments"

although technically true, passage of those amendments was due not only to reasoned discourse and the recognition within the body politic of the essential rights of all human beings - as implied by the statement - but also to the absence from the process, either in fact or in essence, of certain states owing to differences of opinion about both the scope of such rights and the methods by which those differences should be resolved.

subsequent history suggests to me that left to the normal democratic process countrywide, passage of these amendments could have required a good chunk of another century. after all, it took another half century to get the vote for another significant "minority".


Joan A. Conway

All about a counter-attack on Roach's "The Draconian policies adopted by Liberal Regimes, like Mexico's.

Mexican Government in Transition, by robert E. Scott, 1971, reveals Roach is reflecting a "Don Quixote de la Mancha" side of Professor Stone's European sentiments to liberal political systems.

But turning Roach's argument on its head, roach is the Don Quixote.

His argument is a foolish impractical pursuit of the past 40 years that "the Supremes should butt out of abortion issues.

Roach intentions we should return to the rule of force and cunning.

The excerpts follow:

The initiation: Prior to the 1910 Revolution in Mexico, which was not Mexico's first Revolution by the way:

The advance toward the West counterbalanced and kept in relative check some of the traditional power agencies, such as the Church, landowners, and military officer cliques. The Non-Western political system was inflexible personalistic or ideological boses. It was replaced with a pragmatic one, vital to the development of the Western Political System.

Mexican states may dominate many of the actions of the municipias, but they run a poor third in the race for political importance in Mexico. They are neither near the source of power at the top of the political system nor near the people at the bottom.

Mexicans do not have and did not have a high degree of shared values, hence a Revolution was in store for it.

It was a closed social and political system.

The landed aristocracy, "supported by the Roman Catholic Church with conversative policies both spiritual and non-spiritual," (my insert) during the independence era set the stage for the unhappy violence at the onset of the revolution movement.

These groups excluded most Mexican people from social development, economic advance, and political participation making a government system impossible.

Social Darwinism found a fertile field in the minds of Diaz and his cientificas.

Consequently, it was a private preserve and, as far as they observed it, the national consitiution as a set of rules for a kind of private game played among themselves.

It excluded Indian inhabitants from participation in the political process.

Not even the Church provides many intergroup contacts for the Mexican. In theory, religion and particularly the Catholic Church is a universal agency but, as we have seen, many Mexicans do not look beyond the confines of their own district. They identify with the local church and the "miraculous" statute it contains, or with some variation of the cult of the saints, and even the sophisticated city - Meican is closer by far to the "ark virgin" of Guadalupe than he is to an abstract mother of God who might intercede for him. Rome is far from Mexico, and the Mexicans who profess to be Catholic in religion ar ehardly catholic in their personal relations. A BIG KEY.

Not many of the middle-and-upper class Mexicans look upon the president as a father-image any longer, but a very large proportion of the lower class still do.

The dispenser of political favor is still the president for the middle-class politicans. In this sense, personalismo still is a very important part of Mexico's political system.

Constitutionalism suffered terribly in the process, because it never really existed as a working part of Mexico's political system during the 19th Century. Only given lip service, but conditions in the country made the rule of force and cunning more meaningful than the rule of law. given the nature of the power structure, all too often the departure from strict constitutional usage with which we tax one of these men was the only course open to him in the face of a pattern of unconstitutional acts by state or regional leaders. [Alberto Gonzales as Attorney General in Texas, with George W. Bush as Governor of Texas, and thereafter U.S. Attorney General and U.S.President, respectively].

The real choice facing the president was not always between constitutionalism and dictatorship more often than not it was betwwen dictatorship and anarchy.

The national political process during the Revolution of 1910 consisted of the interaction among a limited number of leaders who had to satisfy the demands of a few traditional organized interests, such as the military, landowners, and church.

The Revolution occurred because the old political system was unable to accommodate the mounting pressure of demands from an increasing number of new interest groups. Many of these were willing and able to resort to force when the formal government failed tosatisfy their needs.

Mexicans now feel the best government is one little restrained by the norms of a constitution, but could be used for their demands: access to the process of policy-making and stability in the face of disturbances.

Caudillos, like Alberto Gonzales in the U.S., political generals were no friend of the constitution since they wielded power, and were not socialized to it either, under the Constitutional Norm.

You may be measuring today's politics wanting against very nearly impossible ideal goals rather an against the problems of the past, Roach. It is a common Latin trait picked up from Hispanic culture, or any predominantly Catholic European culture, like Ireland and not so much the cynics of Italy.

Church membership and revolutionary political activity were obviously very nearly imcompatible. The Church called upon the Mexican Catholic to protest against lay education, as exemplified in Article 3 of the Constitution and to seek restritution of its traditional rights, temporal and spiritual - the very antithesis of what the Revolution stood for.

The Church made demands imcompatible with the citizens' activities in other, nonreligious aras if interest, and the leadership of the party has accommodated some of the pressues brought on it, easing the most stringent controls over the Church and permitting it a freer action in nonpolitical matters.

The aligned inters of the Church, big business, and upper-and-middle class professional poeple suffered from a broad membership base and concessions had to be made to the ordinary citizen by 1958. "

"This is about the time line Roach describes in his blog."

The real Mexican Revolution began in 1810 with Morelas and has ever since tried to win control of the government for the people, on a continuous basis.

The anti-clerical faction within the Queretaro, where the 1910 Revolution was born, convention that included in the 1917 Constitution provisions divorcing Church from State and particularly Church from politics could never have approved the sentiments the revolutionary candidate expressed in Tlaltenango,Zacatecas, during February, any more than old-style orthodox Roman Catholics could his statement "earlier."

The new Vatican policy, "of which Roach speaks," for latin countries under which the Church seeks to identify itself with more liberal social and political doctrines than it has supported heretofore.

Argentina, Colombia, Venexuela, Cuba and even Spain, the Church hierarchy opposed certain acts of authoritarian rulers resulted from this new policy.

Mexicans and all members of the Church, lay or clerical, failed to identify with this new approach.

Church is changing attitudes and the reforms engendered by the Revolution have become sufficiently institutionalized to enable the government party to consider relaxing informally its long-established pof tight-controls over the church.

To Roach:

Widely held Catholic views should not influence a protestant American society's abortion policy because it flies in the face of their cafeteria-like obedience to Roman Catholicizm, concerning their use of birth control devices (the pill and conterceptives)and the confessional booth and taking the sacraments. This is after all not Latin America.

The foreign import of very nearly impossible goals rather than problems of the past is a common Latin trait picked up from the Hispanic culture, not the American culture.

The vile forms of persecutions came about from authoritarian rulers that a caught adherents to a liberal cause off-guard, and resulted from a new policy - to identify with the liberal factions, because their governments clinged to Non-Western model in its political system of exclusion of some of its people.

I hope I've cleared this matter up about "Stone's attemtp to deligtimize the common secular philosophy of Catholics and their high regard for text, original meaning, and, to a lesser extent, the natural law tradition, is simply another way of saying widely held Catholic views should not influence a society's abortion policy. It's a short step to the Draconian policies adopted by "Liberal" regimes like Mexico's."

Posted by: Roach | April 26, 2007 at 02:38 PM

I loved reading this book by the way especially the part about former President Eisenhower trying to make Congress a co-equal and his failure to do so.


Joan, are you a native speaker of English. Much of your previous comment is unintelligible or awkward or both.


Griswold is exemplary of the problem with "let the people decide". here it is 1961, there is an utterly anachronistic law on the books, and some fool - and not even in one of the backward states - decides to enforce it. OK, it's indisputable that there is no explicit constitutional right to contraception. but there is also almost no chance that anyone is going to mount a movement to overturn a ridiculous law that everyone ignores or campaign for a constitutional amendment. and the lower courts have dutifully upheld the conviction.

so, SCOTUS is faced with a dilemma: technically they are hemmed in, but clearly justice is not being served. so what to do. they can of course mechanically "follow the book", but this is only one of countless little "freedoms" that everyone takes for granted but are not explicitly granted, and unfortunately there is no end of nutcases who want to tell other people what they can't do. the general problem is likely to recur repeatedly, so they need an umbrella way out.

now a pragmatic judge might just simply say "look, there are some arenas where it's debatable whether the government should intrude, and there are some where it obviously shouldn't. this is one of the latter; government, get lost." but douglas unfortunately decided to wax poetic instead and found "penumbras, formed by emanations", thus setting himself and all subsequent defenders of basic privacy up for ridicule. but that doesn't alter the essential problem: there is no "pure" way out if enough legislators are willing to vote to outlaw something even if doing so is patently outlandish behavior.

one option is interpretive flexibility, eg, create an ill-defined "substantive due process" protection. my impression is that almost everybody thinks that fails the stink test despite its frequent use. another is randy barnett's ninth amendment approach, which I think is (very) roughly: presume rights are retained by "the people" unless the government can unequivocally justify removing them rather than presume no rights unless they are explicitly granted. but even some "liberal" constitutional scholars question his interpretation of the amendment's original intent (prof barnett is, I believe, a conservative libertarian).

so, there's a real problem, and there's no immediately obvious solution. rather than harping on unfettered majority rule - which is precisely the source of the problem - or constitutional amendment, which isn't feasible in volume, how about suggestions for a practical solution. unless, of course, one thinks it's just dandy to make absolutely any activity illegal as long as enough rubes can be sold on its being a plot by communist, atheist, satanic, gay, or other nefarious forces.

(BTW, abortion is clearly one of the legitimately debatable arenas, so I'm not suggesting any of this applies to that issue.)



"Open minded" liberals have closed off such vast swaths of terrain under the crude and unreflective view that certain things are obviously wrong and backwards and unprogressive.

Aristotle, Burke, Cicero and others seriously considered laws designed to inculcate virtue or the merits of monarchical rule and state support of religion, etc. Liberals for all their open-mindedness have hardly even considered the extent to which their au courant and faddish views have little philosophical support or are at least debatable

Liberals (including Stone) are as parochial as the worst medieval villagers, and, unlike those villagers, imagine themselves to be expansive in their thinking and heroic in their iconoclasm. But today's iconclasts prefer to smash the already destroyed idols of another age.

CTW illustrates this parochicalism perfectly in his discussion above.


Amen Roach.

This liberal parochialims is well demonstrated in liberals' efforts to turn any good idea into a right, a la Griswold.

For example, maybe our country would be better off if mothers could choose between have having fetuses dismembered and having their brains sucked out in an abortion. But liberals aren't satisfied leaving this choice to the politcal arena, insisting instead on a Constitutional right to choose the brain sucking procedure. This is where ctw's Griswold argument leads us.


Mr. Roach, you castigate liberals for refusing to consider the merits of monarchy.

Quod verbis? ("What need is there for more words?")

Frank Petrilli

I was only able to read through the first third of this blog, and that was all I felt was necessary, but for what it's worth:

Erasmussimo, LAK, - I wish you had more support here. The partisan vitriol on this blog is stupefying. Sometimes, there are perfectly futile conversations, and this seems to have devolved into one of them.

For my two cents, I wish that conservative bloggers generally were less prone to hyperbole and personal attacks. It would be nice if, among a group of well-educated elites such as those on this blog (I presume), a general attitude of construing opposing arguments as charitably as possible and using reason, rather than emotion, to further the dialogue could be adopted. CTW, nice job on this front.

Calling Prof. Stone a 'bigot,' for example, seems wildly beyond the pale. If fear of religious persecution is what is motivating some of the bloggers here, then I urge them to voice their concerns at the outset. Surely they will be ameliorated in no time, for I highly doubt that any of us (and I am a liberal atheist) desire to purge religion from our political debate.

The problem is, and I admire Eras for holding his ground, once you start spouting vitriol, no one will listen to you. This applies to both sides, of course.

The other (unspoken) issue so far is that this series of posts demonstrates just how hands-off and taboo questioning religion really is.

For the record: I also find Joan's posts highly confusing.


BTW, Mr. Roach, I believe that you are committing another sin against logic in your use of straw man arguments. The straw man in this case is "liberals". You attribute to this undefined group a number of imaginary beliefs (e.g., "Liberals (including Stone) are as parochial as the worst medieval villagers, and, unlike those villagers, imagine themselves to be expansive in their thinking and heroic in their iconoclasm.") Then you attack those fantasy beliefs.

My suggestion, Mr. Roach, is that you confine your attacks to statements actually made here on this blog. This will make them not only more logical, but also more relevant.


Would you say Roe was the decision of secular religion.


mr. petrilli:

thanks for the kind words. when attempts at serious discussion meet with the kind of responses to which you allude, it's obviously frustrating - altho unlike eras, I simply treat them as background noise.

if you are interested in more substantive discussions of church-state legal issues, I highly recommend:




Prof. Stone - Had Justice Thomas remained an Episcopalian, do you imagine he would have voted differently? What would your blog post have been in that alternate world? Would it not have been written at all or would we be talking about "crypto-Catholic Thomas"?

ctw - Thomas was confirmed as a justice while he was an episcopalian. I don't know how your Excel formulas are going to account for a justice that grows in office.

Frederick Hamilton

After all the comments on the three abortion posts does anyone doubt the intractableness of the issue? Why? It touches us at our core. Life. Life of mothers and children.

That Roe v Wade was a legal and societal disaster irrespective of your pro-life or pro-choice position is a given.

Decisions of this social magnitude must be made by the people themselves. For a diverse set of laws on the subject, it should remain a state's issue. If you want to nationalize it, you'll end up with an issue that no group of 9 robed individuals could ever hope to solve.

Like it or not, we are a religous nation. To try to make hay over that as Prof Stone has is fruitless as these three posts have shown.

The issue of abortion also makes liars out of all judicial nominees on both sides. Could any nominee for a federal judgeship be confirmed if he truly stated his view of Roe v Wade, either way?

Conservatives and liberals I think would like Roe v Wade provided a decent burial and return abortion to the people at the state or local level. Get it off the national level. It is too emotional and unsolveable at the national level. Also distorting rational thinking of even "clear headed" lawyers, politicians and just plain folks.

When some of us think of seperation of church and state, we also think of the issue of abortion.

Interestingly, almost half of young Americans (from 18 to 30) think there should be a limit on abortion.

Ergo, no solution and everyone should cut their losses and get the issue out of Dodge (Washington DC) and back where it belongs. Locally.


One could extend the reasoning that "[d]ecisions of this social magnitude must be made by the people themselves," and say that individuals should make the decision instead of legislatures--yes, even state legislators. There is nothing that says that a state legislature would be any more competent than a national legislature. An individual who best knows her personal circumstances is best equipped to decided whether to have an abortion, or not.

I'd like to clarify my position from earlier about why Courts are the appropriate institution for preserving rights. I do not believe, like ctw, that elites are better equipped to decide rights. I think that courts should decide them because the institution itself promotes the protection of liberty. The incentives are structured such that the judicial branch will inevitably come into conflict with the executive and legislative branches. It is an institutional argument, as opposed to ctw's elitist argument.

Roach, I agree that the process of shifting majorities helps to protect the rights of minorities. The fear that eventually someone in the majority may one day be in the minority makes this possible. I also think that this occurs only in the long term, over the span of decades, if not centuries. It is possible that an entire generation may have its liberties circumscribed in the short to medium term. From the perspective of the individual, what good is it if the legislature restores his, or her, liberty after he, or she, is dead? The courts are there to protect liberty in the short term.

I don't view economic redistribution as violating the rights of the wealthy minority. My reasons for this are too long to explain within the scope of this post.

As for constitutional interpretation, I disagree that some phrasing is "almost totally open ended" and it "shift[s] power unaccountably to the courts from the people." There are principles behind all of the phrasing and the principle is constraining what the Justice can and cannot do. For example, no one reads economic equality in the Constitution because it's simply not there. Is there a degree of discretion for Justices about how to interpret some clauses? Yes, but all law has ambiguity and contradictions that sometimes require prioritizing one principle over another. If it didn't, we would never need judges.

I will grant you that sometimes there can be a degree of arbitrariness about how some things are interpreted, but there is an amendment process, if enough people think that something is being incorrectly interpreted, it can be changed.

Finally, I'd like to appeal to your conservative instincts. Part of the law's legitimacy stems from its stability. Whether Roe and the following case law was decided properly is only one concern. It has now been the law for decades. People have come to rely on it as the law, and people make decisions based on the assumption that it will remain the law. If we don't want the law to be ever-changing, perhaps it's time to accept a flawed decision to promote stability within the law. If we really want it changed, then we need to amend the constitution to outlaw abortion. Otherwise things should remain the way they are.


Mr. Hamilton, I strongly agree with your overall observation that the abortion issue is intractable. I disagree with your claim that this implies that it must be solved at the state level rather than the national level. Mr. Golddog really nails it with the observation that, if you want decentralized decision-making, you should let the mother make the decision. Indeed, there is simply no logical rationale for handling this at the state level. I think we must choose between the national level and the individual level.

I believe you are factually incorrect in declaring that "That Roe v Wade was a legal and societal disaster irrespective of your pro-life or pro-choice position is a given." I suspect your strong opposition to Roe v. Wade induces you to project your own feelings onto others. The great majority of pro-choice people regard Roe v Wade with great respect. I myself consider it a magnificent decision whose subtlety is lost upon its opponents. I'll be happy to explain my reasoning, if you wish.

Frederick Hamilton

"her personal circumstances" and leaving it to a personal decision of the mother only of course ignores the fetus. Does the mother get to decide a viable fetus dies? Is there a government interest in the future infant?

Frederick Hamilton

I am afraid there needs to be "laws" on the subject. I just think it best be left to states than the feds. New York for instance is now considering updating its abortion laws. Fine. Let NY, Calif, Utah, et al decide the issue themselves.


Mr. Hamilton, I see no reason for your preference for handling this at the state level. If this is a fundamental issue about human life, it seems unacceptably arbitrary to delegate it to the states, and even more arbitrary to decentralize the decision-making partway (to the states) but not all the way (to the mother). Besides, from a pro-life advocate's point of view, a patchy set of laws would lead to women traveling to states with more liberal abortion laws. All this seems rather silly to me.

Let me also point out that the mother can indeed rationally decide to terminate the pregnancy out of due regard for the well-being of the fetus. If the mother does not have the resources to raise the child properly, she would be better off terminating the pregnancy and waiting for a better opportunity to successfully raise a child. Indeed, exactly this kind of behavior has been observed in a number of simian species and in a variety of human cultures.


"Thomas was confirmed as a justice while he was an episcopalian. I don't know how your Excel formulas are going to account for a justice that grows in office."

no problem - it's just plugging numbers into a function. the probability for 4 of 9 justices is 0.13.

and I wonder what episcopalians think about interpreting switching to catholicism as "growth"?



"I do not believe, like ctw, that elites are better equipped to decide rights."

I, of course, said no such thing. one statement included "buffers between 'the people' and 'elite' decision makers". this was an observation about the structure of our system, for which I assume neither credit nor blame. and surely you understand the significance of the embedded quotes.

on the other hand, I do feel that the founder's hope for representative government - that "men who possess the most attractive merit" (Fed X) would be likely chosen for that role - is not currently being fulfilled. in particular, many are abysmally ignorant even of subjects on which they voice strong opinions. with our complex, high tech, and/or global challenges it seems obvious to me that it is preferable to have people who know something about the issue at hand making critical decisions rather than know-nothings, often merely acting as partisan hacks.



Ctw, sorry. I did not mean to misrepresent your views. In my attempt to clarify my opinion, I distorted your opinion. My apologies.

The comments to this entry are closed.