Bench Memos

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Flattery Will Get You Nowhere — A Postscript


Regular Bench Memos readers may safely skip this item; I promise not to make a practice of responding to those who fail to grasp the rudiments of reasoned argument.

Poor befuddled “Armando”. When last we encountered this hapless Daily Kos commenter, the string of negative superlatives that he awarded my essay on the Constitution and abortion demonstrated that he understood nothing about the actual Constitution. Undeterred by failure, Armando has attempted to construct an argument, but sadly has failed again.

Armando’s failings begin with the fact that he obviously does not understand the meaning of the word “neutral,” for, if he did, he would not contest the elementary proposition that Scalia’s position that the Constitution does not speak to the question of abortion—in other words, that it permits the people to enact permissive or protective abortion laws—is substantively neutral.

The fact that a position is neutral does not, of course, have any bearing on whether it is right. But rather than address my actual criticisms of Roe (which I linked to in my original essay but which Armando either didn’t read or didn’t understand), Armando mistakenly attributes to me, with invented quotes even, the proposition that substantive due process is entirely illegitimate in all its manifestations. That proposition may or may not be correct, but my position that Roe is patently wrong does not depend on it. My observation that it is ludicrous to suggest that the drafters of the Fourteenth Amendment (or any other provision of the Constitution) intended to protect abortion—which was then widely criminalized—without saying so was an observation specific to abortion, not part of a broader argument (in Armando’s words) that “only those rights specifically and expressly guaranteed by the founders are Constitutionally protected.”

Armando demonstrates the charm of a naïf in thinking that extensive quotations to the joint opinion in Planned Parenthood v. Casey are persuasive. He would benefit from reading Scalia’s dissent in that case.

Armando’s self-esteem is inversely proportional to his comprehension, as he fantasizes having “skewered” me in this exchange. Fittingly, Armando might find solace in the comforts of blogger Jessica of NARAL Pro-Choice America, who evidently shares her organization’s penchant for delusional lies and credits Armando with giving me an “intellectual smack down.”


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