The Corner

Wrong Does Not Mean Unconstitutional

This is going to be a vital talking point at water coolers for the next month or so. The number of examples where the MSM has claimed that Alito is opposed to abortion based on his ruling in the Casey decision is already to numerous to list. It may well be that Alito is pro-life in all things. But as many have already pointed out (see Bench Memos), Alito’s position rested on an interpretation of law not on anything to do with core issues of abortion. Indeed, his position was about a very narrow issue in the orbit of abortion: is it okay for a state to require a woman to notify her spouse before she gets an abortion?

Ed Whelan does the heavy lifting on the technical issues. But let’s reduce the principle down to where most intra-cubicle squabbles and dinner table debates will take place. Let’s assume for the sake of argument that requiring spousal notification is 100% wrong in terms of public policy. That does not mean it is unconstitutional. Period. It is the exact same principle as John Roberts’ decision in the french fry case. He ruled that it was horrible that DC police arrested a little girl for eating one french fry on a subway platform. But that didn’t mean it was unconstitutional.

I’m truly flummoxed by people who argue that all good things must be constitutional and all bad things must be unconstitutional. If that were the case, why put lawyers on the court at all? Surely if the questions before the court are what’s good and what’s bad, there are people — priests, rabbis, ethicists — more qualified to decide such things than a bunch of lawyers.

Jonah Goldberg, a senior editor of National Review and the author of Suicide of the West, holds the Asness Chair in Applied Liberty at the American Enterprise Institute.

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