The Corner

A Follow-Up on Palin, Biden, and the Courts

Many, many lefty bloggers are taking exception to my remarks about Biden, Palin, and their comments about the Supreme Court. To take their complaints one at a time:

1) Yes, I am aware that the Fourteenth Amendment includes the word “liberty.” It’s a word, not a clause. It is also true that courts have sometimes referred to the “liberty clause”—just as legal authorities have sometimes referred to “the equal protection component of the due process clause.” It’s still not a sensible way of talking about the Constitution. It’s a way of talking about the Constitution that suggests greater sympathy for courts’ mischievous use of the Fourteenth Amendment than I think wholesome (which is why I included the point in a comment about why I found Biden’s comments more worrisome than Palin’s). As far as I know, Supreme Court opinions have steered clear of the phrase. Good.


2) I am also aware that many conservative legal thinkers have denied that the Constitution protects a “right to privacy.” On almost every occasion what they meant was that the Constitution does not give judges the authority to strike down laws that violate some concept of privacy unless those laws run afoul of particular privacy-protecting (or other) constitutional provisions. I agree with those conservatives on the substantive point. Doing so does not preclude me from saying that there are important senses in which the Constitution protects the right to privacy. Different words, same concept.

3) I don’t agree with Scott Lemieux’s assertion that if there’s a constitutional right to contraception then there’s a constitutional right to abortion, but my point in defending the notion that originalism is compatible with a right to privacy is not to defend a constitutional right to contraception. I think Griswold was wrongly decided and have no problem saying so, although it strikes me as a moot issue.


4) Biden speaks a bit loosely in describing Roe, but he is clearly suggesting that abortion can be restricted in the second trimester and more heavily restricted in the third trimester. That’s not true. The Court in Roe said that abortion could be regulated in the second trimester only in the interest of the woman’s health. In the third trimester it could be protected only with exceptions for the mother’s health—exceptions that it defined, in the companion case of Doe, so broadly that abortion cannot be prohibited even then. Most of my lefty friends, including Ed Kilgore, are just repeating Biden’s error.

5) I didn’t take Palin to be advancing the view that individual states can reach different conclusions about what the federal Constitution requires, which would indeed be loopy. I took her to be saying that different states should be allowed to reach and act on different conclusions about abortion policy.

Three more points in a bit–I know you’re all dying for more!

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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