Thursday, August 13, 2009

Republican Hypocrisy on Judges

Kevin Gutzman:

In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition. In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.

Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?

No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?

That is a good point.

It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!

Any time two sides disagree, the flaws of one side do not generally excuse or equal the flaws of the other side. But it's important to recognize imperfections for what they are, so that that which is better can continue to be supported. Making good ideas more popular would both sides more likely to adopt them.

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