ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Thursday, November 03, 2005

Alito & The Disingenuous Left

Jeff Goldstein at Protein Wisdom provides an excellent analysis of the Left's attempts to twist Judge Alito's opinion in Casey.

In a peripheral swipe at Samuel Alito, the Washington Monthly’s Kevin Drum points to two posts that challenge the idea of “husband” notification with regard to abortion restrictions, before concluding:
As I’ve mentioned before, abortion is just one of a constellation of hot button conservative social issues that have at their core a desire to enforce traditional sex and gender roles, and notification laws are yet another example of that. They aren’t about notification, they’re about control. In the case of parental notification, there’s at least a reasonable argument that this kind of one-sided control is appropriate, but in the case of husbands and wives, there isn’t. Not in the 21st century, anyway.
Here, Kevin’s superficial analysis is long on ascribing motive and short on allowing for good faith—and so represents a method of argumentation that is quickly becoming the standard tactic of many left-leaning political commentators (and some on the right, as well). In this case, the motive, Kevin says, is a desire on the part of...who, exactly?—conservatives? the Pennsylvania legislature? Alito?—for enforcement and “control” over women’s bodies, though notably he doesn’t explain how such an ironfisted rule would precisely work. Notification, after all, is not consent, and so would seem to imply a coequal interest in the fetus (or, for those morecomfortable, with the clump of cells, from a property rights standpoint) moreso than a desire by the Pennsylvania legislature (or Alito, or those who defend Alito’s dissent) to control a woman’s body).

(At this point, it is important to remind readers that Judge Alito’s role in all this touches on none of these social issues—no matter how desperately those who oppose his SCOTUS nomination try to switch the grounds of debate to make it so; instead, Alito’s role was to decide whether the Pennsylvania legislature had the Constitutional right to pass such a spousal notification law, and Alito decided that they did, using Justice O’Connor’s “undue burden” standard—and existing analogous legislation—to decide the case. His role was not to decide whether or not the Pennsylvania statute was a bad law. That is is the debate we are having here. Instead, his role was to decide whether the law passed Constitutional muster, and his thinking, from a legal standpoint, is rigorous and well-argued.)
Once there, any serious debate is going to require good faith on both sides. Drum and Franke-Ruta—in assigning to their opponents cartoon motives more properly relegated to the kinds patriarchal boogeymen who haunt the dreams of belligerent, second-wave gender feminists like Amanda Marcotte—miss the opportunity to have a discussion on reproductive issues that proceeds from the neutral ground where men’s interests and concerns are allowed into the equation, not simply dismissed as some fantastical desire to control a woman’s uterus.

Sadly, though, I believe that reducing the debate to cartoon terms is precislely the point. Whether or not spousal notification is a good or practical compromise (and do remember that notification is distinct from consent or permission, words you’ve likely heard many on the left use to frame the issue) in reproductive and “property” rights disputes should be an open question, one that is hashed out inside an informed and honest debate; alas, some folks committed to women’s identity politics would rather just do away with the difficult work of having to weigh competing rights and interests, and instead assert the primacy of their rights by cowing their opponents into retreat by leveling charges of misogyny, or by insisting that the very desire for discourse or legal redress is, in its very nature, part of a conspiracy to subjugate women and re-institutionalize a system of perfidious male domination.

Read the whole thing.

It's amazing that, no matter how many times we say it, the Left refuses to recognize that we're not supporting Alito and originalist judges because they'll impose their values on us. We support them because they rightly recognize that the people make such difficult decisions as spousal or parental notification in the legislature.

As I mention here, Scalia was very clear in one of his rare television appearances. I paraphrased him with the following:
The basic message from Scalia is that if you want our laws & government policy to evolve with the people, DO IT THROUGH THE LEGISLATIVE PROCESS. Convince and persuade your fellow citizens that your position is correct and get it passed through our democratic process. The "Living, Breathing Constitution" perspective empowers unelected justices to impose their feelings on these matters, while at the same time removing the issue from further debate (ie if it's unconstitutional, it no longer becomes a matter for the legislatures (federal or state)). Our government is more flexible when the Constitution is interpreted through original intent, because the difficult issues of the day (on which our opinions will change over time) can be decided through the legislative process year after year.

That they do not recognize this shows that they're either acting in bad faith in the debate or that they really have issues with basic comprehension.

Your Co-Conspirator,
ARC: St Wendeler