Thursday, April 05, 2007

The latest on Rudy

... where he lays it all out on his views on abortion. I will say that I give the man some credit for not changing his stance at a moment when it'd be so clearly politically advantageous for him to do so (I don't care for pandering, even to the right side). Still, there are two revealing quotes, to me:
When asked directly Wednesday if he still supported the use of public funding for abortions, Giuliani said "Yes."
"If it would deprive someone of a constitutional right," he explained, "If that's the status of the law, yes."
The campaign nuanced that statement later ("would not seek to make any changes to current law, which restricts federal funding to cases of rape, incest and the life of the mother") but it's obvious that this is what Giuliani thinks.

I understand what Giuliani may be getting at from one end with his conditional "if" clauses -- that if abortion were no longer a constitutional right, then there wouldn't be a right to funding. The problem is that the conclusion doesn't follow under the status quo. In other words, even if a thing be a constitutional right, it doesn't follow necessarily that the state has an obligation to fund that right or make available the means to exercising that right.

Free press being a right doesn't mean the government has any obligation to pay the New York Times' newsprint costs or to give Weekend Update correspondent Al Franken a better satellite. Reading through the Bill of Rights just now, I saw only one right where the state does have some obligation to provide the means -- the right to criminal counsel and thus some related Sixth Amendment rights. The rights that require some external goods to exercise but which the government has no obligation to provide also include keeping and bearing arms, free speech and free exercise of religion.

And since the right to abortion has been grounded either in the fictitious right of privacy or the Casey "mystery passage," both of which are in the "leave me alone" genre of claims, it's hard to see how there can thereby be a claim on others. "Leave me alone" means "leave me alone."

So that's a non sequitur. But then there's this, on his promise to appoint strict-constructionist judges, which is the pro-lifer argument for Giuliani:
"A strict constructionist judge can come to either conclusion about Roe against Wade," he said. "They can look at it and say, 'Wrongly decided thirty years ago, whatever it is, we'll over turn it.' [Or] they can look at it and say, 'It has been the law for this period of time, therefore we are going to respect the precedent.' Conservatives can come to that conclusion as well. I would leave it up to them. I would not have a litmus test on that."
So let's make one thing perfectly clear -- when Giuliani says "I'll appoint strict-constructionist judges" and "I ♥ Scalia," he doesn't think that means overturning Roe. He thinks it is possible to be a strict constructionist and uphold the right to abortion, at least in retrospect, once made.

The arguments about Roe and precedent and judicial philosophy are too complicated to do justice in this note here, though I will note that simply as a political matter it will not and should not wash. In the political arena, "precedent" is a code word for "I want it off the table." In the judicial arena, "precedent" just means "I liked the original decision." Roe is barely half as old as the Plessy separate-but-equal case was when Brown was argued -- a precedent liberals not only don't mind overturning but insist that overturning is a litmus test for human decency. And one wonders how long the "gay marriage" decision of 2010 will need to become an irreversible precedent (I'm guessing 2011).

Certainly I can't imagine backing Giuliani in the Republican primary with all this stuff. Not when there are a score of other Republican-primary candidates who are acceptably good. But Giuliani is not, at least for a Republican primary. That said, I believe all elections are a matter of the concrete choices put in front of you and so a general election would involve a different set of considerations. But the considerations of October 2008 should not determine who we back in April 2007, which is way too early to be picking candidates based on issues of viability and strategic voting. For social conservatives, Sam Brownback is clearly the best candidate on the merits (e.g., he was the only candidate to come to Marine Gen. Pace's defense against the gay thought police who think Catholic teaching an impermissible opinion to hold). And, as a Catholic convert, one of the few to have unerringly correct instincts. Sure, his name recognition and polling numbers are currently low, but they are no lower than Jimmy Carter's in mid-1975 or John Kerry's in mid-2003 or Michael Dukakis in mid-1987 or Bill Clinton in mid-1991. The thing is that winning a major-party nomination GIVES you name recognition and automatic viability (what? you think all those "Kerry/Edwards" signs at the Dem convention had been lying around for two years?). I'm not saying Brownback doesn't have an uphill battle, but April 2007 is the time to be acting from the heart, not the head.


Anonymous said...

The Blackadder says:

One of the most striking things to me about Giuliani's statements on abortion and judges is how ill-informed they are. When asked about his support for abortion, he always says that we shouldn't be putting women in jail for having abortions - something pro-lifers don't advocate. And his attempts to explain strict construction are almost painful to this lawyer's ears. It's clear that he hasn't thought much about these issues, doesn't know much about them, and doesn't care to.

paul zummo said...

You posted on this right at the same time I did. I won't rehash all the arguments, but I just have to, for the zillionth time, hop on my hobby horse and say that Justice Scalia and his ilk are NOT strict constructionists. In fact, Scalia has expressly argued against strict constructionism. The term you are looking for, Rudy, is "originalist."

Rant over. At any rate, the guy is becoming less impressive by the day.

Roger H. said...

As a certain Southern Catholic appellate attorney and blogger might say to Rudy, "Stare decisis is fo' suckas!"

Donald R. McClarey said...

Between public funding for abortions, and yes my wife wife will sit in on some cabinet meetings and no my wife will not sit in on cabinet meetings, Guiliani has done a first rate job of destroying his campaign before it began. The media will continue to hype him, but I think he is well-done toast.