Likelihood of Success

Ron Coleman’s pretty good blog

How would a real conservative justice rule?

Posted by Ron Coleman on July 29, 2007

On abortion, that is? Well asked here. What exactly is the rationale for federal involvement in the question? It isn’t a mirror-image question, because if you construct a federal constitutional right to abortion out of emanations and sealing wax, why, there’s your federal involvement. But ruling that there is no such right does not give the federal government any sort of power to regulate it besides that very unconservative commerce clause. No, that won’t do; it’s no more intellectually honest than the jerry-rigged “right to privacy.” And can we call it anything other than “activist judging” to craft, say, a Fourteenth Amendment “substantive due process right” to the unborn?

That, evidently, is what has people saying that the real “federalist” on abortion is Rudy Giulani. Well, I won’t say that federalism is what has motivated him on the question nearly as much as the fact that he wanted to be Mayor of New York City. Like George H. W. Bush, he’s not, from what I can tell, particularly animated on the question in either direction; it is a matter of political expediency, as, with all politicians besides Ralph Nader, so much is.

But in terms of outcome, it is a fair question: Can conservative judges really “turn back the clock” on abortion in any meaningful way? Can they do more than give the question back to the states? That’s no small thing — the left does not trust state legislatures, and even state supreme courts aren’t the dependable sweethearts of every liberal notion they were once touted to be.

The whole question is probably moot, because Justice Stevens, God bless him, has by all indications found the fountain of eternal life. Still, you’d want to know. Just in case.

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One Response to “How would a real conservative justice rule?”

  1. jaymaster said

    IMO, this is THE potentially divisive issue in the Republican party today.

    I’m a small government, mostly libertarian type. I don’t have a problem with abortion laws as they stand today. Besides the Federalist take, I also see it as a separation of church and state issue. The belief that life begins at conception seems mostly religious to me.

    The rise to power of the socially conservative wing actually drove me from the R party a few years ago. But I’m back “in” now, mostly because of the GWOT.

    If the Dems could ever figure out a way to exploit this rift, I suspect it would be dark days for the Republicans.

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