Friday, September 16, 2005

Maybe He Doesn't Get Out Much

Commenting on Roe v Wade, Charles Krauthammer huffs,
Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.
Why doesn't the Canadian Supreme Court decision, R. v. Morgentaler, Smoling, and Scott, [1988] 1 S.C.R. 30, 79-80, count?

Krathammer also suggests that when legislators ask about stare decisis, they aren't concerned with the outlawing of racial quotas or the right of the Boy Scouts to exclude gay scout leaders. Curiously, though, he doesn't mention desegregation. Not curiously, really... if he were to put Brown v Board of Education or Loving v Virginia into the mix, he would have to explain why (despite his being a supporter of legalized racial integration) those issues don't properly lie with the state legislatures, consistent with the long-standing practices and precedents they overturned. Or, conversely, he would have to explain why they do.

But then, perhaps Krauthammer is a "cafeteria federalist", and thus doesn't recognize an inconsistency.

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