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September 04, 2012

Women Voters as Single Issue Sheep

Madeleine Albright appears to be confused about the way representative government works. You see, in a democratic republic, rational adults can (and often do) examine the same issues and come to entirely different - and diverse - conclusions! Progressive dogma generally treats diversity with the kind of veneration generally reserved for sacred relics, the innate legitimacy of which cannot be questioned. We are continually urged to be more inclusive - to ensure that everything from government to corporate leadership embrace minorities and women (who are not actually a minority) because of the unique perspectives they bring to the table.

Unlike men, who have argued about everything under the sun since the dawn of time, the presumption seems to be that the uterus-having half of humanity (while being fully equal to/interchangeable with men in every way) ought to be different from men in one crucial respect: our biology should dictate our political positions. For while it would be primitive and uncivilized for men to think with their fifth appendages, the mere possession of a uterus and other, more evolved ladyparts (some of which have written entire books about themselves!) bestows upon women a mystical, magical kinship that suppresses critical inquiry and unites us into a sort of hive mind, not unlike The Borg collective. In case that seemed like a non sequitur, you read correctly. Unlike men, women show true liberation when we all think alike:

"I'm not sure I'm going to state this exactly right," she said, sitting amidst a sea of convention-related activity and daytime wine drinkers in the Westin hotel lobby in downtown Charlotte. "But I think there are some who believe they are actually protecting women, you know, and that it is better for women to be taken care of. I think women want to take care of themselves, and I think having a voice in how that is done is very important. And frankly, I don’t understand -- I mean, I'm obviously a card-carrying Democrat -- but I can't understand why any woman would want to vote for Mitt Romney, except maybe Mrs. Romney."

Albright then revised her pool of rationally thinking female Romney supporters to include his five daughters-in-law, an obvious but hardly generous expansion. Even with the rhetorical flair, however, Albright's comments reflect a genuine disturbance that many Democrats -- women and men -- feel about the tone of the discussion of women's issues during the course of the campaign.

The Romney women appear to be excepted from Ms. Albright's expectation that the fairer sex think (and vote) as one. For reasons not explained (undoubtedly because women already understand them and men never will, no matter how patiently we explain), it is profoundly irrational for women to vote for conservatives, but entirely rational for us to vote for our spouses or relatives by marriage. Tribalism trumps principle or self interest every time.

But wait! There's more to Ms. Albright's unique philosophical stylings! Women shouldn't vote for Republicans because of that icky fellow with the weird ideas about contraception. You know, the one who was pretty much uniformly denounced by his fellow conservatives a few weeks ago?

The former secretary of State, who has been an outspoken advocate for women in the workplace, said she found the assertion by Missouri Senate candidate Rep. Todd Akin (R-Mo.) that a rape victim can shut down her body to avoid pregnancy to be "one of the more outrageous" comments she's witnessed in her 75 years.

So let's get this straight: a party that defended a man who flouted the sexual harassment laws progressive women fought for is not outrageous enough to cause women to doubt the party's commitment to so-called women's issues. That was only an outrageous action. Outrageous comments are a much more serious matter...as is believing in the value of human life, or even acknowledging that abortion rights impact anyone but pregnant women.

"It was appalling and disgusting," she said. "But if I may say so, the things that he said in one form or another are in the Republican platform. So [while Republicans are] saying he is a nutcase and they have to move away from him, they did not move away from their platform."

Her reference was to language in the GOP platform that outlaws abortion even in cases of rape or incest. It's a policy that Romney's running mate, Rep. Paul Ryan (R-Wis.), has embraced throughout his career, before distancing himself in the wake of Akin's remarks. Romney has always supported such exceptions. Even so, Albright argued, he had "become captive to a party that does in fact think that women should not have voices."

This is just nonsense - no one, not even the uber-outrageous Todd Akin - has suggested that women should not have a voice in public policy. We already have the vote, and no one is trying to keep us from speaking out in public, from trying to influence the platform of either party, or from advocating for our position on matters that impact our lives. If anyone is trying to silence women's voices, it's Albright (who seems to be unaware that the pro-life movement is full of real, live women). Failing to acknowledge this fact amounts to ignoring these women; acting as though they don't matter. This is something we thought only The Patriarchy was guilty of. Apparently, we were wrong: as far as the DNC is concerned, dissenting female voices might as well not exist. They can be safely disregarded; marginalized.

Unlike Ms. Albright, I would never dream of lumping all women into the same category. I know why I have voted Republican for most of my adult life, and why the GOP's platform on abortion doesn't bother me one bit:

1. Neither the President nor any elected official has the power to unilaterally overrule Roe vs. Wade, though even if they did, this would not prevent me from voting conservative.

In a democratic republic, people are allowed to disagree and they are allowed to try to persuade their fellow citizens to support their preferred policy positions. Debate and dissent is not a threat to anyone's rights - it's the foundation of our rights under the Constitution.

Like it or not, Roe is the law of the land. It can only be reversed by the Supreme Court. So Democratic ads that frighten women with scary talk of what Romney or Ryan would do once in office are a particularly dishonest form of fear mongering. Misleading women about basic facts to get them to vote the way you want doesn't strike me as respectful of women's intelligence or agency.

Assuming that women are just as capable as men of debating or defending their own values, on the other hand, is the very definition of respectful, equal treatment. It's what feminism claims to want, but often opposes in practice.

Women aren't weak, pathetic creatures who need to be shielded from scary debates and distressing facts. We're are not threatened by debate or disagreement because we know we can hold our own. Finally, and perhaps most importantly, many of us neither want nor need the federal government to promise us free contraceptives.

A movement that claims to believe men and women should be treated equally under the law has no business giving women preferential treatment under the law. Men have an interest in birth control too. They have an interest in preventing STDs and AIDS. And yet ObamaCare does not provide free contraception for men.

Why is that? And how can a truly progressive party support such outrageously gender-biased treatment under federal law? That's a question Ms. Albright probably won't be asking anytime soon.

But she should.

************

Update: Somewhere in America, a Republican has supported a law we don't like!!!11! Oh, the humanity! Inexplicably, despite our support for the legality of limited abortion, we are not terrified.

Apparently, these folks need to brush up on their SCOTUS decisions.

Posted by Cassandra at September 4, 2012 06:58 AM

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Comments

Was there a "2." to go after "1."? It reads like you meant to say a little more about why you've voted Republican during your adult life.

Also: Is it really a principle of equality that there can be no differential treatment? Let's take a case where (unlike the current case) all women actually did agree on what they wanted; and all men didn't want the thing that all women wanted. Thus, all women want the law to provide them with X, and all men want not-X for themselves.

It sounds like the principle of equality before the law could permit that: we could vote to give all women what they want, while also giving all men what they want. Everyone is being treated equally, because everyone is getting what they want from the law.

Alternatively, we could read the law as forbidding different treatment. But now we must either force all men to receive X against their will, or else all women shall not receive it. The equality here comes from having one rule that applies to everyone, but it creates misery rather than happiness.

Either position seems to me to be a form of "equality under the law," but the first form seems better. Often people don't want the same things; it is good if the law can be flexible about that.

Posted by: Grim at September 4, 2012 10:23 AM

Um -- as I recall, the Republican outrage over Akin's comments was not that he opposes abortion even in the case of rape. Lots of Republicans oppose that. The outrage over Akin's comments was that he said crazy offensive stuff that was not and never has been in the platform. So the idea that Akin's offensive notions are "in one form or another . . . in the Republican platform" confuses me. The idea seems to be that if you refuse to kill fetuses, that's the same thing as saying that any women who conceives must have been lying about being raped. I agree with Pol Pot that the sky is blue, but I differ with him on some unrelated issues.

One way Albright goes wrong is in assuming that the entire Republican party is uniformly and uniquely hostile to women (and the Dems are the pure opposite). If I thought that, I guess I'd have tough choices to make, like a black man who thinks the KKK is the only group available to avert invasion by China: he'd have to weight the probability of personal persecution against his interest in national security. Luckily I don't think that. It's been a long time since I saw any evidence that the Democratic party had anything special to offer me re women's rights. But that may be because I don't see free abortions as an important woman's rights issue. If I did, again, my tradeoff between personal and national interest would be tougher.

It's not a personal issue for me any more, of course, but should I be saying to my nieces: "I know you were hoping for an economy in which you might earn a living and a currency that wasn't a joke, but sorry, honey, you're going to have to give all that up so you can have all the abortions you want"?

Posted by: Texan99 at September 4, 2012 10:40 AM

There was more originally, but I have a full week at work and today will be particularly hectic so I was rushed. I didn't even have time to read the post over once to make sure it makes some kind of sense :p

Is it really a principle of equality that there can be no differential treatment? Let's take a case where (unlike the current case) all women actually did agree on what they wanted; and all men didn't want the thing that all women wanted. Thus, all women want the law to provide them with X, and all men want not-X for themselves. It sounds like the principle of equality before the law could permit that: we could vote to give all women what they want, while also giving all men what they want. Everyone is being treated equally, because everyone is getting what they want from the law.

I agree that if there were actually such a case, we could go with a sort of "in the end it all evens out" principle. The problem is that there isn't such a case and I don't think there will ever be. "All men" and "all women" are extremely unlikely ever to agree 100% on anything!

Be that as it may, when I wrote of equality, I was thinking of the oft cited feminist goal of equal treatment for women (except when they want extra rights not given to men without ceding a single reciprocal instance of extra rights for men, not granted to women). In principle, lots of things should work.

When people fall on hard times and society lends them a helping hand, they *should* respond by redoubling their efforts and paying it forward.

But large numbers of people don't. I actually have no moral or philosophical objection to safety nets (though I could easily make either case, as there are many eminently reasonable arguments to the contrary). Our tax system is already quite progressive, so wealthier people pay more for the same benefits of government (and in some cases, for benefits they cannot - by reason of their wealth - benefit from directly). So "fairness" in the sense I understand it - justice - is a fiction.

My objections are mostly practical or utilitarian in nature.

Posted by: Cass at September 4, 2012 10:46 AM

One way Albright goes wrong is in assuming that the entire Republican party is uniformly and uniquely hostile to women (and the Dems are the pure opposite). If I thought that, I guess I'd have tough choices to make, like a black man who thinks the KKK is the only group available to avert invasion by China: he'd have to weight the probability of personal persecution against his interest in national security. Luckily I don't think that. It's been a long time since I saw any evidence that the Democratic party had anything special to offer me re women's rights. But that may be because I don't see free abortions as an important woman's rights issue. If I did, again, my tradeoff between personal and national interest would be tougher.

Bingo :)

Posted by: Cass at September 4, 2012 10:47 AM

...(except when they want extra rights not given to men without ceding a single reciprocal instance of extra rights for men, not granted to women)...

I was thinking of something like this yesterday. There are cases where women want things of their own -- yesterday I read about a woman-only steakhouse, where women can eat without having to feel self-conscious about men watching them. There's a chain of gymnasiums for women. Here's a case where women want a benefit from the state that men in general don't want, and anyway aren't entitled to have (a man can't have a taxpayer-funded abortion because he can't get pregnant, and if he 'wants one' it really remains up to the woman whether or not he 'gets one').

I don't have a problem with women-only steakhouses and/or gymnasiums; I do have a problem with paying for someone's abortion, but I don't have a problem in principle with women getting some benefit that is unavailable to men. WIC, for example, is to support poor women with young children get food, until the children are old enough to go to school and eat free/reduced lunches. The program was probably originally aimed at widows and orphans, but single mothers seem to be the biggest group claiming benefits today.

Do I want a similar program for men? No I do not.

Posted by: Grim at September 4, 2012 12:59 PM

By the way, lest you think that WIC is really for the children (and breastfeeding mothers only because of the infants), it does also provide benefits to "non-breastfeeding post-partum women." I have no problem with that; being a mother of an infant is very hard, and you need to eat. We have an interest as a society in supporting these women if nobody else can do it.

On the other hand, I'd rather they had husbands who worked to provide for them at this time. Back on the first hand, though, even if they had husbands right now they might not be able to find work. Jobs are thin on the ground out here.

Posted by: Grim at September 4, 2012 01:16 PM

"Women aren't weak, pathetic creatures" but are they women? The charming Janice Baird Sontany (TN State Rep) has a litmus test of sorts: (re GOP women opposing her) “You have to lift up their skirts to see if they're women...”

Then there's the distaff political discourse test. The elegant Lisa Brown (Michigan State Rep) of "I'm flattered that you're all so interested in my vagina, but 'no' means 'no,'" infamy. The legislature had taken up a bill tightening restrictions on abortion. Ms. Brown had made it a test of political/legislative discourse that absent a birth canal, one had no say in the matter – unless one could channel the thoughts of a put upon uterus.

Is it any wonder that men, and some women, question having allowed women the vote - knowing it would lead to women in politics - knowing that would lead to women doting on female complaints – knowing that would bar men from having any but a compliant voice – lest they be thought making war on women?

Posted by: George Pal at September 4, 2012 02:20 PM

Is it any wonder that men, and some women, question having allowed women the vote - knowing it would lead to women in politics - knowing that would lead to women doting on female complaints – knowing that would bar men from having any but a compliant voice – lest they be thought making war on women?

In the words of one Richard Milhaus Nixon, "let me say this about that" :)

It's no wonder that some people ask the question, but that doesn't make the question a sensible one. It doesn't make a whole lot of sense to me to withhold the vote from one half of humanity simply because some minority of them might (or even do) abuse the privilege or say things we don't care for.

Free speech has never implied absolute protection from competing (or even moronic) speech.

There's no shortage of viewpoints in politics, nor of self-interested interest groups jockeying for advantage, nor of loud mouth types who try to intimidate, berate, or shame their opponents into submission. These things were true centuries before women got the vote and yet no one was saying, "Dang! We never should have given those pesky menfolk the vote!" (probably because men were the only ones who had it - women weren't allowed to vote).

When only one sex had the vote, problems were generally attributed to imperfect human nature, not personal plumbing. Now , for the first time in history, women are "allowed" to participate in government. That's a *good* thing, and the only reason we're having this conversation. It's the reason some some women are throwing their not-inconsiderable weight around: before, they didn't have the ability to do so.

From where I sit, that was not a good thing for anyone except men who think the world would be so much simpler (for them) if men were the only ones allowed anywhere near the ballot box (and perhaps women whose grasp of history is so abysmally bad that they haven't figured out how fast rights go away when no one is willing to stand up for them).

Too many conservative men in particular are still looking for someone to blame for the lamentable fact that American woman are not treated like they are by Islam. Not that they like Islam, mind you. Just certain aspects of it, like the whole subjugation-of-half-the-human-race thingy.

In politics, everything is a potential lever and people are (surprise!) sometimes self-interested. People complain about all sorts of things I happen to think are stupid. The answer to those complaints is no different when the complainers are female (or black, or Muslim, or Whatevah-American). Idiotic rhetorical gambits like saying that if you don't have a birth canal, you're not entitled to an opinion/vote are easy to refute on the merits because they have almost no merit to begin with. If men (or women who care about men) can't think up good retorts to such bad arguments, we have a LOT more serious problems than a few mouthy females and their collective uteri :p

Men are parents too. Even citizens who aren't parents and have no intent to ever become parents still have a say in public policy via the vote. There is no "bar" to speaking up (nor do women have enough power to create one), unless it be a self-imposed decision that defending your position is "too hard", or "not worth the hassle".

History has not been kind to the policy positions of people who can't be bothered to defend them, or who get discouraged when they learn that free speech doesn't protect us from disapproval or disagreement.

Posted by: Cass at September 4, 2012 03:41 PM

That said, George, I share your distaste for these twits and their talking ladyparts.

But the solution is not to punish everyone who shares the same plumbing because standing up for our beliefs would be easier if we limited the very freedoms we claim to hold dear.

Posted by: Cass at September 4, 2012 03:44 PM

I don't have a problem with women-only steakhouses and/or gymnasiums;

Well I do. Not in principle, because in principle I think both men and women ought to be able to create businesses that cater only to a particular group. Moreover, I think they should be allowed to refuse clients they don't want to deal with.

I have a major problem with "women only" businesses if and only if the law forbids men from opening male-only businesses. There is no compelling female interest that justifies such open discrimination against men.

I don't have a problem with people forming voluntary personal or business associations based on real or perceived shared interests. What I DO have a problem with is when government prohibits one group from doing that on the specious grounds that exclusivity is wrong and bad, then turns right around allows another group to do what they just finished saying was impermissible.

Posted by: Cass at September 4, 2012 03:49 PM

If the republicans were so intent on outlawing abortion I must say they've done a pretty poor job of it. It's been nearly 40 years since Roe v. Wade, and they have gotten nowhere. Could it be that it's a red herring for both sides?

Don't mind that debt and deficit over there, look, abortion! A whole portion of the economy burned down by Congress, housing, lookie there, it's a war on women. Of course having your house value go to 50% is pretty much an economic war on everyone.

Heck, we're still paying for the debacle of energy "de-regulation" here in California, and probably will for the rest of my life. But, let's talk about something else. I know, high speed rail!

Posted by: Allen at September 4, 2012 04:37 PM

Cass:
I sure hope you are right. I am hearing a lot of rumbles that waving the "womens' issues" flag is in fact swaying lots of the predominent part of our population into voting Dem.I hope not; but it's what I'm hearing.

Meanwhile I've installed an empty chair on my lawn. Lots of William and Mary tenured academic types live in my neighborhood, and it's really fun to hear the cars slow down followed by the sound of grinding teeth.

Posted by: CAPT Mongo at September 4, 2012 04:51 PM

The Democrats and other "progressives" are obsessed with dividing people by race/ethnicity/gender. This belief that a person's biology must needs determine their political beliefs is one of the things that convinces me that modern "progressivism" is at least as much Fascist as it is Marxist.

Posted by: david foster at September 4, 2012 04:51 PM

I am hearing a lot of rumbles that waving the "womens' issues" flag is in fact swaying lots of the predominent part of our population into voting Dem.I hope not; but it's what I'm hearing.

I don't know the answer to this, but any argument that isn't forcefully and convincingly countered can gain traction, especially when it appeals to strong emotions or perceived self interest.

So what, specifically, is the GOP doing to counter the frankly insulting ads aimed at women by the DNC?

I'm going to write about this if I can tomorrow. I have some thoughts, but need to work them out before shooting off my big keyboard :p

Posted by: Cass at September 4, 2012 05:38 PM

If the republicans were so intent on outlawing abortion I must say they've done a pretty poor job of it. It's been nearly 40 years since Roe v. Wade, and they have gotten nowhere.

I don't object in the least to people arguing about what our laws should be on this subject, whether or not they agree with me. That's their right. But I really get annoyed when we treat abortion as a major issue in a *presidential* election. The fact of the matter (desires to the contrary put aside for a moment) is that the President can't unilaterally overturn Roe. Neither can Congress.

But let's pretend that's exactly what happened. What would be the next step? What would we be reversing? A decision that prohibits the State legislatures from passing laws that outlaw or criminalize abortion during the first trimester (the time when the vast majority of abortions take place). States currently can and do place other limits on so-called abortion rights.

It is just beyond stupid when progressive sites like ThinkProgressyve go apesh** over state legislators who try to pass laws that, were they to pass the state legislature, would be struck down as unconstitutional by SCOTUS.

The way to reverse Roe is to put enough pro-life judges on SCOTUS that it is eventually reversed, NOT to waste time arguing over moot points during elections of public servants who couldn't do what various people want them to do/are afraid they'd do to save their own lives.

In order to stack SCOTUS with prolifers, the public will need to control both houses of Congress with big enough supermajorities that their nominees can't be blocked... probably for several terms. Oh, and they'll probably need to change some house/senate rules, too. That's not only a really tall order, but statistically improbable given the past 100 or so years of American history. It *could* happen, but probably won't.

I totally understand and support arguing over abortion specifics at the state level, or over federal funding of abortions at the federal level. What I don't get are openly dishonest suggestions that Mitt Romney (or his Evil Minion, Paul Ryan) is somehow doing to do something any nitwit should know he doesn't have the power to do.

So yes, I think it's a distraction from issues where the President *can* actually - and unilaterally - affect the outcome. Not that I'm bitter, mind you .... :p

The Democrats and other "progressives" are obsessed with dividing people by race/ethnicity/gender. This belief that a person's biology must needs determine their political beliefs is one of the things that convinces me that modern "progressivism" is at least as much Fascist as it is Marxist.

By the Beard of the Prophet, David! Must you manly menfolk keep saying things I have no choice but to agree with??? STOP TRYING TO CONTROL MY INDEPENDENT WOMANLINESS WITH YOUR MASCULINE MIND-CONTROL RAYS!!!! :)

Posted by: Cass at September 4, 2012 05:48 PM

Cass, (if I may?)

The doubt of whether it were wise certainly does not lead me to consider seriously the disenfranchisement of the entire other sex. I am not, though, without thinking it wise to disenfranchise wide swaths of both men and women – but so much for my fantasies.

That understood, I still find it exasperating that the moral high ground has been occupied by the morally vacuous and the intransigence and the loudest voices have been (for the most part) female (Progressives, feminists, pro women (whatever that might entail)) . The reprehensibly stupid remarks of Mr. Akin registered nowhere near as reprehensible, and indefensibly immoral, as Obama’s remarks and opposition to the Born Alive Infant Protection Act. Yet it is women’s voices (again, for the most part) that have made much of the first and nothing of the second.

I am not as sanguine as you that this is so. The female (politically correct) voice has been given extraordinary gravitas as one of a minority and/or victim - that is much to overcome in a world that sees the truth as irrefutably coming from only one side.

Posted by: George Pal at September 4, 2012 06:27 PM

This is the quote I was not as sanguine about as you.

”Idiotic rhetorical gambits like saying that if you don't have a birth canal, you're not entitled to an opinion/vote are easy to refute on the merits because they have almost no merit to begin with.”

Editor's note: you had an extra opening bracket. Fixed now!

Posted by: George Pal at September 4, 2012 06:30 PM

Don't know why the quote won't register.
re you comment @ 3:41

Idiotic rhetorical gambits like saying that if you don't have a birth canal, you're not entitled to an opinion/vote are easy to refute on the merits because they have almost no merit to begin with.

That's the one.

Posted by: George Pal at September 4, 2012 06:34 PM

...the President can't unilaterally overturn Roe. Neither can Congress.

That depends on what you mean by "overturn." In a sense, it can't be done because only a court can "overturn" a court ruling.

In another sense, though, Congress and the President in concert could take a number of steps to effectively reverse Roe. They could pass a law forbidding the Federal courts from hearing abortion-related cases, and then pass a law that banned abortion (in all or some cases). They could pass a law that defined life, personhood and citizenship as beginning at conception, which would compel (under Roe's own text) the extension of 14th Amendment's equal protection clause to unborn children.

And of course Congress, in concert not with the President but a supermajority of states, could pass a Constitutional Amendment that would resolve the matter. That one is less likely than the other two, however, because it would require a level of political support that does not exist currently.

Posted by: Grim at September 4, 2012 10:59 PM

...at least as much Fascist as it is Marxist.

The overlapping category is formally called "national socialism." Note the small letters, to distinguish it from the more infamous National Socialism.

I have a major problem with "women only" businesses if and only if the law forbids men from opening male-only businesses.

The argument in favor of those bans (where they exist) was that men used these clubs for carousing activities that inevitably bled over into work-related promotion and/or favoritism. Thus, because men controlled all the power, male-only social clubs could not be permitted while women were trying to get a leg up.

Perhaps we can revisit the argument now that women seem to have achieved equality in many fields, and dominance in some (while men continue to dominate others; but that also is a form of rough equality). Maybe we don't need the old rule anymore. Women-only gymnasiums just make a lot of sense to me, at least; it's an environment where I can understand why women might desire to exclude men.

Posted by: Grim at September 4, 2012 11:04 PM

They could pass a law forbidding the Federal courts from hearing abortion-related cases, and then pass a law that banned abortion (in all or some cases). They could pass a law that defined life, personhood and citizenship as beginning at conception, which would compel (under Roe's own text) the extension of 14th Amendment's equal protection clause to unborn children.

I'm sure that neither of those would be immune to Constitutional review by the SCOTUS. Congress can pass laws that say "this is not reviewable by the Supremes" all they want. It does not make it unreviewable, and is on its face unconstitutional. You cannot legislate away checks and balances. Just like I don't believe the War Powers Act would ever stand up if someone forced the issue.

Posted by: MikeD at September 5, 2012 08:29 AM

I agree with Mike. Let's say Congress passed such a law.

Let's look at how cases get to SCOTUS in the first place - someone sues. You can't tell me that if Congress passed a law inconsistent with the holding in Roe, no one would challenge it.

Of course they would. I think Grim's second suggestion is the only way to do an end run around SCOTUS:

of course Congress, in concert not with the President but a supermajority of states, could pass a Constitutional Amendment that would resolve the matter.

The problem is that public opinion doesn't indicate a strong desire - or even widespread support - for overturning Roe via amendment. And in any event, this still wouldn't be a relevant issue for presidential elections b/c the president couldn't make this happen all on his or her own by fiat.

Posted by: Cass at September 5, 2012 10:19 AM

It does not make it unreviewable, and is on its face unconstitutional. You cannot legislate away checks and balances. Just like I don't believe the War Powers Act would ever stand up if someone forced the issue.

The difference is that the Constitution specifically gives the Congress the power to limit the jurisdiction of Federal Courts. Article III, Section 2:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Congress is thus free to make an exception to jurisdiction. The Constitution didn't establish judicial Constitutional rule as a check or balance anyway; SCOTUS arrogated that power to itself in Marbury. What the Constitution very plainly does do is give Congress the power to limit and regulate jurisdiction.

Of course, as Cass says, the SCOTUS could re-arrogate itself the power by ignoring a limiting law, and reinterpreting the Constitution to mean something other than what it means. Such a body of judges would be rightly subject to impeachment by Congress and trial by the Senate. Only one SCOTUS justice has been so impeached and tried, but the power -- an actually Constitutional check and balance -- definitely exists.

Posted by: Grim at September 5, 2012 10:53 AM

When was the last time Congress passed a law limiting the jurisdiction of the Supreme Court?

Posted by: Cass at September 5, 2012 12:25 PM

I will point out that Grim is correct. Judicial review was created completely out of thin air by CJOTSC John Jay. That makes it no less real today. Congress CAN attempt to legislate judicial review away from the SCOTUS. And if a Congress was ever so colossally stupid to attempt it, they would spark an immediate Constitutional crisis. Because the sitting SCOTUS would immediately rule such a law an unconstitutional overreach and the Congress (presumably) would tell the SCOTUS to stuff it where the sun doesn't shine. And ultimately it would be up to the POTUS to break the deadlock. Andrew Jackson called the SCOTUS' bluff when he told them to try enforcing their decision re: the Cherokee. They couldn't, but nor did Congress step up and impeach the President. So assuming Congress tried to legislate away the power of the Supreme Court, one of two things would come out of it. The President would back their play (and you'd likely see an armed revolution) or he would not (and things would return to the status quo). For the ultimate check on all the power grabbing the federal government does is we the people. And if one branch of government attempted to choke out another, I cannot see the people taking that quietly. Frog in the pot again. A slow erosion of freedoms I can reasonably forsee. Sure a threshold MIGHT be crossed that would spark a reaction, but for the most part, slow gradual changes are invisible. But something drastic like changing our current set of checks and balances? That's too far, the frog will jump.

Posted by: MikeD at September 5, 2012 04:37 PM

Cass:

There were three such bills in 1996, which seem to have survived (regarding prisoners and immigration decisions); in 2005, Congress passed a bill regarding war-on-terror detainees that was overturned on other grounds (i.e., the suspension clause of Article I).

Mike:

It's not as rare as it sounds. The point is, there's nothing that says you can't do it; and it's a statutory remedy. A Constitutional amendment is a better remedy, though, for a lot of reasons -- one of which is that we could end up with a ping-pong game of one party wiping out the right of review, and the other restoring it, and so on and so forth. That's surely not a highly desirable state for us to find ourselves in with regard to any issue.

On this particular issue, though, there's a very deep popular division. There are clearly a subset of Democratic activists who feel this protecting of abortion rights is the single most important thing the Federal government does. There's a subset of Republican activists who want to eliminate abortion in absolutely every case. If we judge by the platforms, the activists on both sides have captured the parties; but I doubt that's really true in practical fact. I think the activists are getting suckered into thinking that the party will be bound by its platform. In fact the professional politicians are happy to sign on to any set of principles you like. It's irrelevant to them what moral principles are supposed to be guiding them; such principles will have no effect on their actions.

Posted by: Grim at September 5, 2012 05:06 PM

Congress CAN attempt to legislate judicial review away from the SCOTUS. And if a Congress was ever so colossally stupid to attempt it, they would spark an immediate Constitutional crisis. Because the sitting SCOTUS would immediately rule such a law an unconstitutional overreach and the Congress (presumably) would tell the SCOTUS to stuff it where the sun doesn't shine. And ultimately it would be up to the POTUS to break the deadlock.

Sounds like fun!

I think abortion is a tougher nut though, because the parties have different roles in the conflict:

Act One: Congress passes a law making abortion illegal in all 50 states, effectively reversing a federal judicial fiat with a federal legislative fiat (by the way, is this really an outcome conservative federalists should support?).

Congress also passes a new law saying [brace yourselves] that SCOTUS can't... what?

1. Hear appeals of cases challenging the Constitutionality of a federal law? (Mike's revocation of judicial review scenario) I don't think this is wise, or something conservatives should want. In fact, I'm pretty sure it's something we should oppose on principle.

2. Hear appeals of cases involving a single issue (abortion)? Now we've taken away the right of appeal for any case involving abortion. If the federal law is poorly drafted the States can't challenge it, even on Constitutional grounds because there's no one to appeal to.

I'm not sure this is such a great idea either. Which is probably why it hasn't (to my knowledge, at least: my last comment was a sincere question, not an attempt at snark) been attempted by Congress.

Posted by: Cass at September 5, 2012 05:12 PM

Sorry, Grim - didn't see your last comment until after I had posted this one! Thanks so much for the examples. I had forgotten the term "jurisdiction stripping", mostly because of the unfortunate association with Dahlia Lithwick.

When I grow up, I want to be a Jurisdiction Stripper!

/running like mad for the exits.

Seriously, I haven't given this any serious thought and would have to read up on it before responding.

If we judge by the platforms, the activists on both sides have captured the parties; but I doubt that's really true in practical fact.

Well, I started to comment on that over at your place but realized I was tired and would almost certainly end up offending someone.

I think the activists are getting suckered into thinking that the party will be bound by its platform.

Do you really think so? I'm not so sure they're fooled. They're making a collective statement, which is always a convenient substitute for doing something concrete (and often the only comfort of people who fear they have no power to change things). But if consensus statements like that were effective in and of themselves, the world would be living in terror of the next UN resolution. We're not, and they aren't.

In fact the professional politicians are happy to sign on to any set of principles you like. It's irrelevant to them what moral principles are supposed to be guiding them; such principles will have no effect on their actions.

You're painting with a very broad brush there, big guy :)

Party platforms include all sorts of nutty things. They're symbolic: no sane person seriously expects every single Rethug or Dem politician to conform 100% to the party platform.

Parties are coalitions of people with a broad spectrum of differing values, who share enough core values to make it worth their while to cooperate on the goals they share. A party that demanded total ideological purity/conformity would be terribly small and most likely completely unelectable.

Further, this deponent sayeth not, lest she frighten the horses and rile up the villainry.

Posted by: Cass at September 5, 2012 05:46 PM

Party platforms:

http://www.youtube.com/watch?v=hJhYYYabp0A&feature=relmfu

Posted by: Cass at September 5, 2012 05:49 PM

I think a law that simply stripped the Federal courts of jurisdiction over state laws restricting abortion could be a good conservative outcome, in that it would restore the pre-Roe capacity of states to regulate the issue. In the absence of a judiciary prepared to respect the 10th Amendment, we could simply strip the judiciary of jurisdiction over particularly contentious issues that are properly state issues under the 10th.

So the answer wouldn't overturn the laws of any state; but it would allow states to return to serving as the field of competition for most abortion-related issues.

(There remain some exclusively Federal issues: for example, whether Obamacare will require people with religious objections to provide material support for abortion or abortifacients; or whether Federal tax funds shall be used in this matter; or whether such tax funds shall be used to provide or promote abortion abroad. These are inescapably Federal issues, but they wouldn't be touched by the proposed law because it only strips jurisdiction over state laws.)

You're painting with a very broad brush there, big guy :)

Maybe, but I think you actually just went on to say the same thing. The party principles encoded in the platform aren't going to be effective at controlling anyone; so what if the platform calls for the one thing or the other?

Posted by: Grim at September 5, 2012 06:17 PM

My favorite Willow-related directional quote is: "Forget the bird. Follow the river."

Posted by: Grim at September 5, 2012 06:31 PM

I think a law that simply stripped the Federal courts of jurisdiction over state laws restricting abortion could be a good conservative outcome, in that it would restore the pre-Roe capacity of states to regulate the issue. In the absence of a judiciary prepared to respect the 10th Amendment, we could simply strip the judiciary of jurisdiction over particularly contentious issues that are properly state issues under the 10th.

That is preferable to either of the scenerios I presented, but it still seems awfully political and one sided: stripping courts of the power to hear cases opposing only one side of a public policy debate.

I don't like the sound of that, but I'd have fewer problems with that than some other proposals.

Maybe, but I think you actually just went on to say the same thing.

I went on to say something similar, but also quite different. Here's your comment:

In fact the professional politicians are happy to sign on to any set of principles you like. It's irrelevant to them what moral principles are supposed to be guiding them; such principles will have no effect on their actions.

I read that to mean, professional politicians don't care about moral principles (and will sign up to things that violate their moral principles).

That's very different from what I said:

Party platforms include all sorts of nutty things. They're symbolic: no sane person seriously expects every single Rethug or Dem politician to conform 100% to the party platform. Parties are coalitions of people with a broad spectrum of differing values, who share enough core values to make it worth their while to cooperate on the goals they share. A party that demanded total ideological purity/conformity would be terribly small and most likely completely unelectable.

IOW, no one really expects the consensus statements/platform of a diverse party to be binding on individual politicians allied with that party. That's a VERY far cry from saying the the individual politicians will sign on to anything, even if it violates their principles or the ones they ought to be guided by.

Posted by: Cass at September 6, 2012 09:13 AM

That's a VERY far cry from saying the the individual politicians will sign on to anything, even if it violates their principles or the ones they ought to be guided by.

Well, I may be an exception to the "no one" who expects the party platforms to be binding. Especially in the legislature, the party pulls together to support a given program. The platform is (or was supposed to be) the point at which you inform the voters what it is you will help enact if elected.

You just cited my post about the moral propositions related to abortion included in the party platform. These certainly are principles, in the sense that they provide a foundation for understanding how to act in any given set of circumstances related to abortion: and it is certainly a moral issue. So, I think it is fair to describe these as moral principles.

I haven't seen anybody resign membership in either major party to run as an independent. That does happen sometimes, but the name and support of the party is so helpful that few attempt it.

That leaves us with two alternatives, as I see it:

1) They prefer an easier road to power over adherence to their own moral principles, or,

2) They don't take their party platform to represent a serious promise to the voters, which means that they can sign on to it whatever it may say.

Now, (1) isn't what I said, though it may sometimes (or even often) be the case; what you and I both said was something more like (2). The difference between us is that I think that a platform ought to be important. A party that seeks popular support ought to explain to the voters what it will do if elected, and the people ought to be able to have some confidence that the party and its members are being honest about the program they will try to enact.

That way, when the Whip comes knocking, and puts the prospect before you of either gaining or losing support for your re-election and plumb committee assignments, it's not such a moral hazard. You can support your party because the voters knew honestly both who you were, and what party you were promising to support. For that matter, if you took it seriously and only signed onto it if it was something you supported, you don't have to worry that you'll be asked to violate your principles in office. It's a promise from the party to you, as much as it is a promise by you to the voters about the program you will support.

Posted by: Grim at September 6, 2012 12:03 PM

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