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I disagree with you at least partially on both issues.  I oppose abortion except in highly limited ( "life of mother" or "child of rape/incest" ) situations.  I am, to a much lesser extent, leery of gay marriage, though mostly, I find alot of the arguments used to support it very convincing. . . for removing the government's hand in marriage as such entirely, with generic dependent/relation contracts for the usual legal results of marriage.

Nonetheless, I totally agree with you here, including the desirability of the outcome stripped of judicial legislation.  Sure, abortion would be legal in most states probably, but it'd be a hell of alot more restricted than it currently is, thats for sure.

This leads to the biggest issue I have with looking at the judiciary:  where is the boundary between proper adjudicating, and improper legislation??

The only 'accurate, universal' method I can think of is basically to look and see if the decision is still contested and contraversial after years and decades, but thats not exactly very useful.

Any thoughts??

The reason we have a legal system and the reason it is so complicated is that life ain't black-and-white. It's nearly always impossible to create unambiguous and easily interpreted rules; there are always cases which straddle the lines.

And that's why we have a judicial system. We rely on judges to make those decisions.

And that's the case also when it comes to what should and should not lie within the purview of judicial decision. Problem there is that it means this one power is largely unchecked. For all intents and purposes, the power of federal judges is whatever they say it is. The only direct check on that is the Legislative power of impeachment, and the only long term indirect check is to be careful who you select to be judges.

That's the situation we're in now. An unchecked judiciary is veering out of control, and the system is responding by changing the judges. It's a process which takes decades, but now it's happening. And that's what has the loony left so terrified, because they're the ones whose programs and philosophies have benefitted the most from judicial activism.

But there is no perfect solution, and there really isn't any fast one. And even if there was, I'd oppose use of it. The entire problem here is that if there's an easy and fast way to make major and important decisions, it will eventually be abused. Slow, difficult ways are frustrating, but they're also much more difficult to abuse. (Though it's not impossible.)

While I don't think I'll ever understand how a conservative can support the legal recognition (i.e. public validation and societal endorsement)of homosexual unions, I do respect them so long as they hold the principled conservative opposition to the judicial imposition of such recognition.  

While I support the Marriage Amendment, I would also be happy just so long as the Courts stay out of it and leave it to the proper authorities -- the people and their elected representatives.  Doing so would likely, over time, still result in at least partial victory for the Left/gay marriage movement, but that would indicate that my side has lost the people, and if that happens, then so be it.  As you say, that would be much easier to stomach than having the decision taken away by judges on some baseless and nonexistent constitutional grounds.

Congress could exercise its jurisdiction-stripping authority, though of course that could lead to the bizarre situation where the Courts say they can't do so.  

And of course, the President or Congress could pull an Andrew Jackson and simply refuse to enforce some particularly bad Sup Court decision.  Yes, I know, that is not going to happen for a whole host of reasons; the idea of judicial supremacy is too far and too well ingrained, if the President did it w/o Congressional support then he'd probably be impeached, and we'd hear unending cries about how such an act would destroy the rule of law and judicial independence.  I don't buy that last reason at all, but the first two alone suffice to ensure that it won't happen.

Your position on the courts and the abortion issue are very well expressed. Most advocates on either side of the abortion issue will no doubt disagree with you, but I think you nailed it on the head:

Abortion is the Supreme Court's Gordian Knot

It also leads one to the larger issue of conservative principles vs. "the conservative social agenda", and the pragmatic political implications:

When Conservatives Aren't

Fidelity to principle is always a challenge for a party or political philosophy, but one of the most  important for it's long term vitality and integrity. It is a problem conservatives have been largely avoiding coming to terms with, but that reluctance has the potential to cost us dearly in the future. Witness the current internal morass on the political left.

If gay people are not allowed to get married, then straight people should not be allowed to get divorced.

;)

your view on Roe reflects your general view that the people should rule through their elected representatives rather then the liberal approach, where well-intentioned elistists rule by appointing the people to the only legal body that makes significant decisions.

I agree.

It will be a long time before liberals realize that one of the main reasons why they're so alienated from main-stream Americans is their insistence that their appointed judges are more qualified to make decisions for the people than those whom the people have elected.

I have exact same opinions.  I favor limited early-term legalized abortions.  I favor gay marriage.  But I am not arrogant enough to assume that because I favor these things the Constitution actually requires them

we are lucky indeed that the political process gave us women's suffrage and civil rights. As you imply, these outcomes were not certain; they were a function of the political process itself.

Woudl you argue then, that had those two cases turned the other way, that we as a nation should have simply "accepted the loss" ?

I think that the Constitution can and shoudl evolve; but I think that the judiciary serves a critical function in keeping that evolution constrained along certain trajectories. Those trajectories are mandated by the philosophical foundation upon which the Constitution itself was built, even if it is not explicitly spelled out in its text.

In general, I agree--there's a problem when the courts are viewed as a second legislative body. But at least some of the blame for this needs to be laid at the feet of Congress itself. Since the Voting Rights Act, when was the last time Congress passed major legislation on a divisive issue?

In essence, it has behaved so irresponibly that it has ceded much of its power to the other two branches. It can't even manage to deal with the asbestos problem.

"when was the last time Congress passed major legislation on a divisive issue?"

How about welfare reform?

Back in the day, this was the one sentence we all agreed would never, ever, appear on the front of RedState.

Thus passeth the Remnant, eh?

People who are fans of judicial activism are generally elitists, anti-populists. I happen to believe in the wisdom of crowds and I have a great deal of faith in the wisdom of my fellow citizens, and I am quite willing to trust them to make these decisions.

"Woudl you argue then, that had those two cases turned the other way, that we as a nation should have simply "accepted the loss" ?"

Answer 1: Yes. That's because doing so is less bad than subverting the system and destroying it. Even if the result is bad in one particular case, overall it's better than rule by tyrants.

Answer 2: No. You don't accept the loss, you try again through the system. It's not the case that you get one chance and one chance only, and that's another virtue of the democratic system. The Women's Suffrage movement in the US struggled for 50 years, but in the end it prevailed.

I'm not in a hurry. I don't expect a perfect outcome immediately. What I want is a system which is self-correcting and which gradually improves itself, and part of that is for idealists to work within the system to try to make it better.

Some idealists are idiots and their ideas are crap; they will work for years or decades and make no progress at all. Some idealists are before their time; they make no progress by their grandchildren eventually win. And some idealists prevail, by convincing the rest of us that they're right.

But slow and sure is the way to play the game, for the system. If an idealist doesn't have the patience to try to work within the system to prevail, the chance is a lot higher that their idea is crap. If they can't convince others to work with them and support them, then the chance is a lot higher that their idea is crap.

The system is a sequential series of filters on new ideas, and each stage in the pipeline improves the signal-to-noise ratio. Some crap ideas will get through anyway (prohibition), and some good ideas will lose out or may take decades to get implemented, but overall the pipeline works well at separating the grain from the chaff.

I don't think I've ever formally claimed to be a conservative. I consider myself to be a classical liberal. But at this time in this country, classical liberals (people who believe in liberating people from tyrannical rule of government) are consider "Conservatives" by self-annointed "Liberals".

(In terms of labels, I'm also not a "Libertarian". I think that big-L Libertarians are loons.)

You were responding to this statement of mine: "The deep purpose of democracy as a political system is to convince the losers to accept that they've lost."

What I meant was that they accept that they lost that particular election. It doesn't mean they abandon the issue; it means they try again on the next election, and in the mean time they live with the results of the election they lost.

I believe that you're posting in good faith here, so I'll try to keep the invective to a minimum.

I find it difficult to elucidate just how insulting this post is to pro-lifers. I suppose that, as a matter of strategy, I should be thankful to have people of this general viewpoint along for the ride, your end goal is so anathema to what I consider to be conservative principles that I couldn't even imagine myself making this argument for the sake of political persuasion - and in my case, that's really saying something.

You said:

There has never been a political decision of any importance which was unanimously supported by the people of the nation -- any nation. The deep purpose of democracy as a political system is to convince the losers to accept that they've lost. And for the most part it works; it's very rare for the losers to rise in rebellion. (In the US it's only happened once.)

And specifically applied this principle thusly:

It took the Suffragettes decades to make their case to the voters -- men -- of America that women should be permitted to vote, but they stuck with it and prevailed, and the 19th Amendment was ratified in 1920. Women now have a constitutionally protected right to vote, and they gained it through political processes. And as a result of that, it isn't a contentious issue any longer. The majority of voters approved of the change, and the losers accepted their loss.

And further:

It's been 33 years since Roe v. Wade was decided by SCOTUS, and it's still contentious. Was women's suffrage still contentious in 1953? Was the right to own slaves still contentious in 1898? No, of course not. Nor was the Civil Rights Act of 1964 still controversial in 1997. The reason Roe is still contentious is because the losers never got their chance to participate in the decision. And if gay rights activists were somehow successful in getting SCOTUS to amend the constitution to create a right to legal gay marriage, that issue would remain contentious.

There are a lot of reasons why I think that this is insulting and inapplicable - not least of these reasons are the comparisons of the pro-life movement to the pro-slavery/anti-suffrage movements - but even your larger point smacks of unworthy condescension. Basically, your point boils down to this: "We should get Roe v. Wade overturned so that we can democratically convince the pro-lifers just how behind the times they are, once and for all."

While I don't believe in ideological purity as a general rule, and I've participated in my share of intra-party disputes on the front page, I would also register my dismay that such a sentiment has found its way to the front page.

Is that that is not what you said. You specifically lamented that abortion was still a contentious issue (in contradistinction to Suffrage/slavery). Thus, the clear point of your post was that you wished the pro-lifers would not raise such a fuss about the unborn anymore.

If Roe was overturned, the short term result was be that the legislatures of most of the states would then legalize abortion.

But it could be that in the long run, opponents of abortion would prevail politically. That's fine with me, too. The point is that I think it's a political decision and I want it decided politically.

My opinion is that it would go the direction of legalization but I could be wrong. Either way, however, I'm quite sure that 33 years after Roe gets overturned that the issue will have been decided one way or the other and will no longer be on the front-burner politically.

That doesn't mean there still won't be people who object to the status quo. But they'll be a small, and shrinking, minority.

This is an article about judicial activism. I thought that an article in favor of overturning Roe might be more persuasive if it were clear that the argument was being made by someone who believes abortion should be legal.

What I meant was that no matter how the issue ends up being decided, it'll be settled in 30 years if we let the political system deal with it.

You might be right, but adoption comes real close to being a perfect solution in the abortion debate.  I would love to see all my pro-life brethren turning down the rhetoric just a bit and starting an adoption revolution.  

After four the old-fashioned way, my wife and I are in the process of adopting a little girl and it is an amazing experience.

... and agree with many of your sentiments.

However, I don't think this is a case which will ever be as clear cut as you propose.

In the case of Civil Rights, Women's right to vote, and slavery... there was a clear contradiction in the principles contained in the Bill of Rights. The only way for a person to continue to oppose those rights being granted is to maintain the position that a black man, or a woman, are less than themselves and thus are not deserving of those rights being granted anymore than a Gorrila who can use sign language to communicate.

While that perspective was certainly maintained, it is not something that can withstand the test of time or critical thinking. It is based purely in emotion and bias.

In the case of a pregnancy mere weeks or even a month in the making, it's not as simply clear cut and will never be. Nobody can look at the collection of cells and conclusively determine that only emotional bias is seperating them from ourselves and thus the rights that should be granted upon them.

Now, where it might be resolved is if enough people can be brought around that it's not about determining when a "human life" has begun, but merely when the physical process resulting in a life has begun that should be protected. If that were achieved, then I do agree that an amendment could be modified in such a way as to grant the appropriate rights necessary to make abortions illegal in all the ways that would satisfy the pro-life camp and the debate able to silently pass into history.

Personally I see that as the logical conclusion of the political process, and even if I support abortions on a practical level, I would not be capable of presenting an argument within the realm of the current US rights system that would counter it and would have to support it even while disagreeing with it personally.

Much like the right of a person to vote at 18 is reserved long before they are capable of acting upon it, the right to life would be reserved until they are capable of acting upon it independently. That too is far too simplistic of presentation, but it's one way of arranging the rights in a way that logistically works out.

... of what I wrote, I've realized that I did present an example of how it could be as clear cut as you propse. In clear contradiction of what I wrote in the first few lines. :)

I guess essentially what I'm getting at is that the current debate structure will never be able to be resolved and as clear cut as the other situations.

It'll require an entirely different method of attack to get it to that stage of simple reason and logic for the population as a whole to accept it.

I mean, even most welfare recipients think it was a good idea. The poverty industry may not have liked it, but even most of them have come on board.

"...even most of them have come on board."

PRECISELY! That's how the system works; the losers finally accepted their loss.

But given the first four words of your post, it's difficult to find this interpretation absent this explanation.

One consequence of judicial legislation (which I, too, consider Roe vs Wade) is that it allows legislators the freedom of taking extreme positions.

In the normal give and take of the legislative process a concensus tends to form among legislators. People may hold extreme positions, but the keeping to those positions takes away their influence in the legislative process. People with extreme beliefs have little influence in how a bill will look, only if it will pass or not. Therefore the legislative process pushes extremists to compromise to maintain their influence over the process.

However when an issue is decided by the judiciary instead of the legislative process then legislators can maintain exteme position without fear of being bypassed by the legislative process. Activists can gather support from the narrow group of like minded extremists without reaching to the larger middle section of the populace.

In statistical terms the tails of the bell curve dominate the issue. To put it on a spectrum the people with beliefs > 1.5 standard deviations from the mean wield undue influence. If the judicial fiat were eliminated both tails would have to make their case to the 80% of the population in the middle of the curve. In other words compromise to maintain their political viability.

That to me is the tragedy of judical legislation. It allows extremists on any issue to wield influence without forcing compromise. That is rarely a good thing. Legislation is about getting part of what is wanted, but compromising pieces of the vision in order to build a 51% majority. As it is now we get a solution crafted by a small number of judges that is immune to change and compromise. Not a good situation.

[Note: in the above I use the words "extreme" and "extremist" to note the position on the idealogical spectrum that a person occupies. Often the term is associated with one who would use violence to attain desired objectives. I do not include that meaning in the use of the word. In my use, an extremist is one who believes that an issue, in this case abortion, should be always illegal or always permissable and will accept no compromise to those beliefs.]

By the way, that the entire point of your post was, "I favor legalized abortion, but I want Roe v. Wade to be overturned so that the issue can be settled democratically once and for all - oh, and I don't care which way that comes out."

That of a world without Roe - I for one am quite happy to resist the oh-so-tempting (and ego-soothing) urge to start throwing folks with a different motivation off the boat.

But that's just me.

That is in fact what I'm saying. I want to be part of the decision, and I want you to be part of the decision. I know how I want it to come out, and you know how you want it to come out, and for the moment we disagree.

But that's OK; it's what politics is about. Eventually one side will gain a strong consensus and the issue will be settled, and perhaps one of us will be on the losing side. Or one of us may change his mind and we may both end up on the same side.

I want that chance to participate.

This article wasn't supposed to be about the abortion issue as such; it was supposed to be about judicial activism. But in this day and age in this country, Roe v. Wade is the biggest running sore of a political problem caused by judicial activism, so that's the one I discussed the most.

(anyone who's spent time at the Wednesday meeting ought to get this)

Point being - I could care not one little bit WHY Steven wants Roe gone - if he's creating an argument THAT it ought to BE gone, we ought let him make it - and be happy he's doing so.

It doesn't make it the proper position for conservatives to take - but it can most definitely be another tool in the kit as we work towards getting rid of that particular piace of judicial blight.

I don't take the same umbridge that Leon did.  In fact, I think it is great that more pro-choicers are lining up against Roe.

I think Europe is an useful example.  None of them have a divisive debate on abortion.  From the pro-life Protuguese and Irish to the pro-choice French and Brits.  Also, most of the "pro-choice" countries have more restrictions than America despite the fact that America is more conservative on abortion.

The one place I think you may error is in predicting the state of abortion laws post-Roe.  I think a good 30 states will outlaw abortions of convenience, leaving only case of rape, incest, and life (or health) of the mother.  This would outlaw 90+% of abortions.  Only on the coasts would the relatively unpopular abortions-on-demand stay legal.

I do, however, agree that the issue will be pretty settled and will stop affecting Senatorial and Presidential races within a decade.  It will be argued on the margins rather than all or nothing extremes.  That would be a good thing for America and for the body politic, even if my position does not win the day.

There is a compromise position out there.  It's not intellectually consistent, but it will win elections and settle the issue if Roe is ever overturned.

Turning to the political process both for abortion law at a state level and legalizing gay marriage has further benefits.

On abortion, adoption would become much more non-partisan. Currently anti-abortion groups demonstrate their sincerity by supporting adoption, while pro-women groups are likely to neglect that "choice," perhaps unwilling to deal with the anti-abortionists involved locally.

On gay marriage, rather than attacks on the institution -- Bishop Eugene Robinson left his wife and daughters for a boyfriend to be found later, the Brokeback boys were cheatin' on their ladies -- we would have support for it from not only the vast hetero-monogamous majority but also from the significant homo-monogamous minority.

Leaving gays outside the marriage club leaves them to make common cause with polygamists, pro-incest interests, pro-child "love" groups, and Rick Santorum's dog lovers. Similarly, pro-abortion groups will support any travesty including partial-birth abortion, against their own long-term interests, simply because they fear any breach in the levy. The political process saves us from the extremes of all-or-nothing.

The one place I think you may error is in predicting the state of abortion laws post-Roe.  I think a good 30 states will outlaw abortions of convenience, leaving only case of rape, incest, and life (or health) of the mother.  This would outlaw 90+% of abortions.  Only on the coasts would the relatively unpopular abortions-on-demand stay legal.

Of course, almost 25% of abortions nationwide typically take place in California alone. New York also has a disprortionately high rate of abortion. In any given year, those two states alone may account for over 40% of all abortions in this country (that's over 400,000 in terms of raw numbers). In two states that would put no restrictions on abortion. Best case scenario, if what you describe comes true, we still have over 600,000 legal abortions in this country every year. That's a start, but a good long way from acceptable.

Therefore, I can't agree with this:

I do, however, agree that the issue will be pretty settled and will stop affecting Senatorial and Presidential races within a decade.  It will be argued on the margins rather than all or nothing extremes.  That would be a good thing for America and for the body politic, even if my position does not win the day.

Don't get me wrong. I know what the first step in this battle is, and I appreciate the argument against judicial activism in general, and generally I'm happy to have literally anybody on board.

But I still take umbrage at the comparisons and endgame described in this post.

Steven, I think I'm completely with you on the risks to our republican system posed by judicial activism.  However, we should also acknowledge that in many cases (though not this one) "judicial activism" has simply been problems looking for solutions on which the Congress has deliberately punted.  

We need a Congress that is willing to step up and address real problems, instead of passing the buck to administrative agencies, which are ill-equiped to make essentially legislative decisions.  It is natural that many disputes before administrative agencies end up in the courts, and the courts to some degree have been unable to avoid being the legislators of final resort.  There are sad ironies in Congress and others in simply bashing the courts, but without demanding more from Congress.

point is the same one I am trying to make.

Anyway, I was wondering what you thought of the role of the courts in civilrights/desegregation.  Interracial marriage, for instance, was so politically sensitive that not even civil rights leaders would touch it, and legislatures and plebiscites certainly would have rejected it.  Loving v Virginia strikes me as a great example of the role of the judicial system, not to mention Brown v Board and the one person one vote holdings before it.  

All of those cases suggest to me that an active judiciary can be a very good thing, even if the judiciary is significantly ahead of the voting population or even the elected and better-informed legislators.  In fact, I think it's a mark in our system's favor that there's a branch prepared to defend unpopular requirements of justice that the legislature never would.

for enabling judicial activism in the first place:

http://www.redstate.com/comments/2006/2/26/153155/278/37#37

What was the role of the courts in passing the 13th, 14th, and 15th amendments, which covered everything you mentioned there?

For that matter, what about the heroic courts who ignored said amendments until 1954 and after, and then summarily reversed field and played the courageous hero when this got people in a tiff?

please explain the connection here

I share almost completely the views you have expressed, and mourn the years that Roe has wasted for having a meaningful public discussion of abortion.

However, because of the difficulties involved, including the shifting factors resulting from technology - which is, after all, what has created the debate to begin with, by enabling abortion - I am not confident that we will ever have a completely satisfactory resolution.  That said, I am confident that we can have a much more fruitful discussion.  

I link to my thoughts on an earlier post in which I attempted to set out what I thought may be some useful considerations.

http://www.redstate.com/comments/2006/2/22/01442/2923/28#28

I don't know what would happen if this is overturned. I can imagine it wouldn't stop abortion. Rich girls would fly to Canada or another country where its legal. Poor girls would turn to back alley butchers who would be as likely to kill the girl as the fetus.

I support gay marriage, a basic American tenet is the persuit of happiness, how can someone be happy if they can't marry the one they love?

Steven. I commend you for placing principle over expediency. It reminds me of this famous exchange in A Man for All Seasons:

More: There is no law against that.

Roper: There is! God's law!

More: Then God can arrest him.

Roper: Sophistication upon sophistication.

More: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.

Roper: Then you set man's law above God's!

More: No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God....

Alice: While you talk, he's gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake

have one of my own.

Just how many states still prohibited interracial marriage?

The reality is that at the time of the Loving decision, the US and its state legislatures had already begun moving in a direction away from the prohibition.

A world without Roe demands allies who dislike Roe.

A world without abortion demands a distinct set.

All in what you want.

Did you even read the diary?

races on the National level (unless congress actually decided to write and move forward an amendment protecting babies in the womb).

But I don't think the battle stops, it just shifts to the state level.  But I think we can all agree that pro lifers who fully believe abortion is horrible aren't going to stop advocating their cause with an overturn of Roe, I actually believe it is at that point that the real debate and battle begins, because the current situation has the pro life cause at a distinct disadvantage, because Roe and subsequent caselaw have made it virtually impossible to even reasonably restrict abortion, much less severely restrict it.

Even though I emphatically disagree with him on both issues.

If we lost these issues by a vote of the people, you and I would not quit fighting to change the minds of the people.  In the current atmosphere of judicial activism, though, we were completely cheated of our rightful vote on the issue.  That is why the contention won't die.

It has been said that the best form of government is a benevolent dictatorship, and I think that's quite true. The problem is that a malevolent dictatorship is just about the worst form of government one can conceive of, and it's extremely easy for a benevolent dictatorship to become a malevolent one with time and turnover in the leadership.

It's entirely possible that activist courts played a big and positive role in the civil rights revolution of the 1950's and 1960's, but even if that was true it's not enough to make an activist judiciary palatable for me.

Yes, it can be a good thing. But what is to prevent it from becoming a bad thing at a moment's notice? Better not to risk it. I will forgo some of the potential benefits in order to avoid the potential drawbacks.

But for Roe v. Wade, many Democrats and Independents would  never vote for a Republican candidate.  For over 30 years the wider and wider ripple effects of Roe v. Wade continue to provoke more Democrats, Republicans and Independents to vote "Republican".  Roe v. Wade has been God's gift to young Republican candidates.  If and when Roe v. Wade is repealed, their reason for voting Republican will no longer exist. Nation-wide state and federal Republican victories since Roe v. Wade became infamous continue to increase.

Congress is not responsible for judicial activism by dint of their slothfulness in addressing contentious issues.  Quite the contrary is true.  Judicial activism has removed the pressure from Congress to address the concerns of the electorate.

If the judges will ever show the respect for the law that is their proper position, as elucidated by Alito, the people will demand action from their representatives if the desired outcomes aren't met.  Hence, representative democracy.

If the judges accurately interpret the laws and there is not a public outcry, then lo and behold, it is either not the contentious issue that some believe, or the contention has not yet reached critical mass.  In neither situation is it merited for the robed masters to enter into the fray with their own personal desires.

in judicial activism agree with me that we cannot only blame the judges.

A quick search pulls up this discussion by Roger Pilon, Senior Fellow and Director of Cato's Center for Constitutional Studies:

What we all want, I assume, is judges who are neither "active" nor "restrained" but "responsible"--responsible to the law. But when the law is unclear or inconsistent, judicial responsibility may be difficult to achieve--and "activism" inevitable. In the end, therefore, our substantive law may be the ultimate source of the problem before us today. That, in fact, is what I will argue shortly. ...

We should hardly be surprised that judges today are thought so often to be engaged in "judicial activism" when they are called upon so often to apply law that is inconsistent, incoherent, and fairly invites them to make all manner of value judgments. In such circumstances, they can hardly be seen to be doing anything but legislate. ...

We come, then, to what in fact is the crux of the matter. Under our system of law, the role of the judge should be much simpler than it has come to be. The problem, however, does not go back just 40 years, as too many conservatives believe. Rather, its institutional roots are in the New Deal. And its ideological roots are in the Progressive Era, when we stopped thinking of government as a "necessary evil," as the Founders had conceived of it, and started thinking of government as an engine of good, an instrument for solving all manner of social and economic problems. ...

Our modern problem of overweening, inconsistent, incoherent statutory law began, then, not with an activist Court--to the contrary--but with an activist Congress and executive branch, bent on expanding government power. In time, however, the problem was abetted by an activist Court--succumbing to pressure from the political branches. But as noted earlier, the Court's "activism" was not as we think of it today--a search for rights not apparent in the Constitution. Rather, it was activism in finding rationales for power--what conservatives today call deference to the political branches. ...

In doing their work, however, judges do not work in a vacuum. They work instead in a larger political climate. If we who shape that climate persist in believing that it is proper for government to be addressing our every problem, no matter how trivial or personal, and persist in believing that our Constitution can legitimately be read to authorize that result, then we should not be surprised that the judiciary is dragged along to play its part in the process--today, often, to try to undue the mess that legislatures make of the effort. ...

We are coming to the close of what has rightly been called the century of government--more accurately, the century of failed government planning. If we are unhappy with the role the judiciary sometimes plays in this setting, it may be that we need to look first to the material we give judges to work with--the reams of statutory material we have enacted over the course of the century.

The Founders had a simpler vision in mind when they set out to craft our legal order. They left most human affairs to private ordering, not to government planning. That gives the judiciary--and Congress--relatively little to do. Is that not what critics of judicial activism want?

www.cato.org/testimony/ct-rp051597.html

More by Pilon here: http://www.nationalreview.com/comment/comment-pilon111402.asp

Of course, I also agree with you that this is a two-way street, so that "judicial activism has removed the pressure from Congress to address the concerns of the electorate."  It's just that I think that is partially a legacy of forcing legislative-type decisions into the courts.

If you want to end all abortion in all 50 states, you'll have to throw out consensual government and impose a strict dictatorship.  There are just strong  majorities in too many states for that to happen.  Even within the far right, there's a big split between South Dakota-style absolutists, and rape/incest exceptionists.

If you want to just restrict as many abortions as are politically practical in this Republic, you have to pass the right laws in the right states, then either get it to ignore the US Supreme Court, or get the US Supreme Court to reverse itself.

It seems to me that the latter course of action is the safest course of action, as it doesn't mimic earlier state/federal tensions that led to the Civil War.  So, many people are following it.  Why you're attempting to make it sound unprincipled, I don't understand.

Are you calling for nullification as the only valid option?  Or have you fully gone the route of  William Lloyd Garrison, and reject the Constitution as a tool of abortionists?

if taking five wives would make me happy, I should be able to do it as an American?  How about marrying a sheep?  Or my daughter?  Or my car?

Do you see how silly your point is?

I wholeheartedly concur.

"even within the far right, there's a big split between South Dakota-style absolutists, and rape/incest exceptionists."

The "far right" if you so call it is the SD-style absolutists.  They make up 20-25% of the population (according to my reading of way too many polls on this topic).  The 3 exceptions crowd is around 40-45% of the country and the abortion-on-demand extremists are about 25-30% of the country.  The "rape, incest, life of the mother" compromise is the mainstream of the country.  Whether that is "pro-life" or "pro-choice" often depends on what state you live in more than anything else.

Maybe my characterization there was wrong.  I live in California, heh.

I think Roe is symbolic of many issues that led working class middle America to lean Republican.  But gun rights, support for the death penalty, tough on crime policies, opposition to same-sex marriage, respect for religion, and self-reliance are issues that a conservative Democratic wing used to champion up until the 1970s or so.  Then these conservatives got the push from the Ds which culminated in the anti-gun efforts of the 1990s helping to lead to the 1994 Revolution.  States such as GA, SC, NC, LA, and FL have new Republican Senators that took over for Ds in 2004.  Those trends are not based solely on Roe.

I believe that if Roe is overturned, the only way there is a major cost to Rs is if they try to nationalize the issue and overreach.  Otherwise, the other major reasons people have joined and vote for Republicans will stand, unchanged.

Here is a good USA Today poll (from 1999) on it:

Ban all abortion 17%

Ban except rape, incest, and life of the mother 55%

Keep legal 27%

FWIW, if you ask people if they want Roe overturned, it's more like 65% pro-Roe, 30% anti-Roe.  I think this is due to a misunderstanding that leads people to think overturning Roe will make all abortions illegal.  This was created by an effective PR campaign by the pro-abortion groups.

It may lack drama, but a Supreme Court ruling to "uphold Roe" but move the line to cases of rape, incest and life of the mother would probably meet with sustained support from a supermajority of Americans.  It would be an activist decision which I'd oppose on those grounds, but it would put the issue on ice.

Wouldn't that work both ways?  Take the situation here in California as an example.  This state hasn't elected an anti-abortion Republican as Senator or Governor since the Reagan administration.

If the end of Roe and friends ended the polarization of the abortion issue, wouldn't that make Republicans more competitive in places like this?

why do you support abortion only in those two instances you cite and not universally?

I think your marriage stance is the right way to go.  Strip "marriage" from any religious context -- leave that to individuals' churches and personal religious beliefs -- and make it just like any other contractual obligation overseen by the government.

And, again, I also agree with your sentiment about the odd course for these issues:  Should the courts, the people, the legislature, the states, or some other entity be the final say on these issues?  Only on some of them?  On all of them?  On only the ones where there's a large national consensus?

...problems looking for solutions on which the Congress has deliberately punted.

Congressmen/women don't want to take on the hard issues because they'll get flack back home, and then people get all worked up when 9 people in robes come down hard.

why gay marriage offends you?

in a Constitutional grey area, but the 14th Amendment pretty much speaks to gay marriage (at least in my reading of it):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

of "What's the Matter With Kansas."  A never-ending fight that energizes the base.

How does defining marriage as a union between a man and a woman, in any way treat anyone differently?

This isn't like the 'anti-miscegenation' laws, which  said that man X could only marry woman A, but man Y could only marry woman B.

Under the DOMA regime, a homosexual has the same right as everyone else, no more and no less.

never got to ask you...  What are your personal reasons for rejecting abortion-on-demand?  Religious, moral, something else?

I agree (and hope) that the issues leaves the discussion in the next decade so that health care, the environment, and other matters can get to the forefront.

two homosexuals marry, than how can this statement be true:

A homosexual has the same right as everyone else.

Homosexuals explicity DO NOT have the same rights as everyone else (and I'm not even talking about taxes, wills, and other things).

There's nothing preventing Andrew Sullivan from going out and marrying the woman of his choice in any state of the union.

There's no discrimination whatsoever here.

I was pro-choice when I was younger.  It was through reasoned discussion that I found myself on the losing side of the argument.  I've always prided myself as one who changes my view when confronted with new information.  I don't see why a life has fewer rights or less value one month before birth as it has one month after birth.  We don't allow parents to determine their child's life begins at their first birthday, so I'm rather unsympathetic to the idea that they get to choose when a child's life begins.  Furthermore, I firmly believe the country would benefit if the issue was dealt with by elected representatives rather than the Supreme Court.  Finally, the sheer enormity of the issue (800,000 to 1 million abortion a year) really awoke me to the fact that this wasn't an esoteric debate.

And for what it is worth, I was an agnostic when I became pro-life (although the person who convinced me was an evangelical and future Harvard grad).  Since then, I've become more religious and Christian although I've never been a part of any "religious right."  I'm mainly a fiscal conservative and pro-life.  My rather libertarian   views on gay rights haven't changed.

Check this map out.  Legal status of interracial marriage in every state for every year between 1776 and 1967.  In interactive map form.

link

All of the Confederate and border states still banned interracial marriage as of Loving v Virginia.  The Mountain West had changed its position through legislative action in the 50s and 60s, but the South wasn't budging.

One person of the same sex marrying another person of the same sex.

that too many liberals are finding solace in some of these arguments.  The idea that abortion alone is what separates working class whites from the Democratic party is a severe misunderstanding.  The Democratic "brand" is seen as hostile to religion (just say a Kos recommended diary about cutting off the tax-free status for churches), anti-gun, and in favor of changing the definition of marriage.  Abortion is part of the problem, not all of it.

And as Neil points out, this goes both ways.  The Northeastern Rs that don't have a chance on a national level could get more notoreity.  Specifically, if Roe is overturned within the next 2 years (I give that 100:1 odds), Rudy Guiliani becomes the actual frontrunner for the Republian nomination and the general election.  Otherwise, he can't make it out of a primary and he knows it.

In case you cared, my view is that it's not a "life" until it's viable outside the womb.  At that point, I would think abortion to be morally wrong.  I personally feel that it's a disgusting procedure regardless (I went to Catholic elementary and high schools, and believe it or not we saw a video of an abortion in junior-year religion class), but it's not my business to interfere with another person's medical decisions.

I would consider myself fiscally conservative as well, I guess.  Extremely tolerant of all GLBT issues and concerns (my favorite moment of the 2004 debates was Bob Schieffer's question, "Do you think homosexuality is a choice?")

Not religious at all despite my scholastic upbringing.  Could not bring myself to believe in something without proof (bad answer, but it's how I feel).

How is that discrimination, either?  Nobody is allowed to marry someone of the same sex.  It's not just homosexuals that this concept applies to.

Marriage isn't 'about love,' no matter how much the left has attempted to redefine it as such.  The fact that marriage is abused that way by some normal people, doesn't change the facts, either.

If you want to have official government registrations of love, well you'll just have to invent a new legal status to that effect.

This case demonstrates a SCOTUS actually following the Constitution, by enforcing the Equal Protection clause of the 14th Amendment.

If that is discrimination.  Then it is discriminatory to prevent 3-person marriages and marriages to minors, and all other kinds of relationships.  The point Neil is making is that the marriage laws apply the same to every person.  I am treated no differently than someone else.  What gay rights activists are pushing is a re-definition of marriage.  This is their right and I generally support the effort, but it should be done by convincing people that marriage should be changed rather than imposing those values on wide swathes of the country who disagree.

Maybe this is a function of geography.  The middle of the country has had the coasts impose their values on the middle for the past 30 years from the death penalty ban, gun restrictions, abortion-on-demand, and it seems same-sex marriage in the near future.  Can you imagine what would happen if the Supreme Court decided that unborn children had a right to life that cannot be violated by state laws, guns cannot be restricted even inside major cities (SF), the death penalty had to be used in every major crime and marriage cannot be redefined in any way.  And voters could have no say in changing these issues.

It circumvents the process of winning people over.  This practice of avoiding a debate with people (often due to a presumed ignorance) has led Democrats to minority status.  Instead of talking to people, the liberal activists spend much of their time suing and hoping to convince judges rather than voters.

Just my 2 cents.

That's not marriage, nor is it discrimination... Nobody is allowed to marry someone of the same sex.

The amendment says "any person," so if one person (of either sex) is allowed to do something, so should a member of any other sex.

Even as a child, I always considered marriage to be between two people, not necessarily of the opposite sex.  Maybe it's because I grew up in a part of the country tolerant to homosexuality.  Our definitions of marriage differ, that's all.  You'd be surprised how "normal" a gay couple with a child is -- I just think they should get the legal protections of straight couples.  It confuses me how this has divided liberal and conservative communities.

may be accurate.

Re: marriage, I had a conversation recently with friends to try and resolve the "polygamy" element of expanding marriage rights.  We came to two solutions:

1.  Be forced to recognize polygamy and bestiality and all other odd situations (which are obviously way less likely to occur) in addition to gay marriage.
   
   
2.  Foster the belief that unlike polygamy and bestiality, the laws are pretty much set up as is for two-person relationships (regarding divorces, child custody, wills, and other elements).  It really wouldn't require a huge legal expansion to permit 2 people of the same sex to marry, whereas things get exponentially more complicated with multiple partners.

Of course, leaving "marriage" to the church and "unions" to the state solves all of this.

"Not religious at all despite my scholastic upbringing.  Could not bring myself to believe in something without proof (bad answer, but it's how I feel)."

That's where I was the first 20 or so years of my life (well after I left the Catholic church around age 8 so maybe 12 years).  Faith does not come naturally to me and is a struggle, but one that is worth the effort.

I think bioethics is going to be a big issue in the future, hopefully not entirely focusing on abortion.  Putting ethical boundaries on science is necessary, but deciding on them is difficult.  Bioethics was probably the most interesting elective I took in college and had nothing to do with my International Economics degree.  FWIW, I'm very pleased to hear that you have seen abortion in all its ugliness.  I think many people put their head in the sand on the issue and are okay with it without thinking about the gorry details.  Maybe it's my pro-choice past, but I hold no ill will toward those with informed pro-choice views.  It's those who have never considered the other side (or discard it as "religious" without a thought) that worry me.  

I thought from your diary post that your response to Leon was already evident.  Unfortunately, Leon is so hell-bent on attacking abortion from a moral vantage that he cannot see "the forest for the trees".  Your point is that before we can even discuss the moral implications, the legal roadblocks must be removed.  In essence, Leon is putting the cart before the horse.

Personally, I have evolved from being knee-jerk pro-choice to a more "moderated" position.  With each passing day the horrors and repurcussions of abortion on our country are becoming more evident to me.  I still cannot say I am pro-life, but I have great sympathies with the reasoning for the movement.  I certainly have no great issues with substantially more restritions on abortion.  As much as I do sympathize with the plight of those who would need to resort to "back-alley abortions," the people of the states will need to address their respective legislatures to address their greivances when the time comes - and I do believe that time is coming, and I welcome it.

In truth, I am a bit off-put by Leon's constant singlemindedess in his abortion posts, but I do absolutely respect his passion and the cogence of his position.  That said, it seems that he, at times, is so singleminded that he cannot get past his own self-righteousness.  His response to you, Steven, is a perfect example: classic case of a failure to "issue spot" as I believe they call it in the legal arena.  He is so defensive about the issue he can't read or think clearly.

I really don't see how my argument is circuitous, but I think you mean circular, and it's not that either.  As an aside, it's always funny when someone uses a $10 word, only to use the wrong one.

My argument is straightforward and not circular.

Marriage is a specific term defined in a specific way.  This definition excludes certain pairings, but includes others.  This exclusion happens completely independently of whether one is classified homosexual, or not. Therefore, it cannot be considered to be discriminating between homosexuals and everyone else, let alone treating homosexuals differently from everyone else.

The fact that you disagree with the premise of what marriage is, the premise that has been codified nationwide by the DOMA and in the constitutions of many states, doesn't weaken my argument.  It just puts you at odds with mainstream America.

"Of course, leaving "marriage" to the church and "unions" to the state solves all of this."

First, I agree with your second point which is why convincing a state to legalize same-sex marriage does not need slide down any slippery slope.  However, the judicial logic for calling same-sex marriage a Constitutional issue is hard to stop at just that point.  This is the problem (IMHO) of using the judiciary to enact legislative changes.  They cannot make arbitrary limits.

Second, your last sentence is brilliant and was my first reaction when same-sex marriage hit the fan.  If gay rights activists were more interested in progress rather than reliving the 60s culture wars, they would push for Civil Union legislation and for giving marriage back to the religious institutions.  I think the Log Cabin Republicans have a good idea of how to do this.  I used to be on the Human Rights Campaign listserve until they started calling my friend the "evil Christian right," etc, etc.  That pushed away allies in my mind and I didn't want it in my inbox.

I think if gay rights activists pushed for a separation of church and state that gave marriage back to the churches and argued for civil unions for same-sex couples that would strengthen their outreach in places other than NYC and SF.  But I'm not convinced they want to win in that slow, decade pace.  They see Roe and rulings that imposed their views on others as the correct path toward "progress."  Maybe they'll change their tactics, but I'm not holding my breathe.

if all issues were purely political ones, then I think your analogy to a filtered feedback loop would be apt. But abortion, and civil rights, are deeply moral issues as well as political.

If you argue that the political system allows losers a chance to try again, and that the most patient/long term argument wins, then I think that contradicts the assertion that an issue is effectively settled within a few decades once freed form judicial fiat.

If a cause is moral, then it can never be settled - and in the case of civil rights a concensus was achieved about the underlying moral issue.

With abortion however there are two moral arguments in direct competition - the sovereignity of the self and the value of life. As a result, a concensus is probably impossible to achieve. In that case the ideal solution is not going to be a national concensus like we obtained in suffrage or civil rights, but rather a true federalist approach.

However, as I hope that Leon and others will confirm, the moral imperative of the pro-life position can not accept a federalist solution. A constitutional amendment banning abortion is really the only possible end game result that can be considered victory.

If I could be given assurances that the pro-life movement would respect federalism as a solution, then I would join in condemning Roe and actively working for its removal. However, Roe is a bulwark of sorts. And tyranny comes in many forms.

Hilla the Hun out of a Senate seat. What makes you think he can beat her in a race for POTUS?

On the abortion issue, I think South Dakota jumped the gun and could set back the movement to overturn Roe. I think a slower approach would be better. The partial-birth ban has been overturned once, but I think it will get through SCOTUS on this trip. Perhaps little bites at a time are better on this. One loss could stop everything in its tracks so Pro life groups shouln't ask for too much at once. SCOTUS won't reverse itself every six months. Also, the Dems could use this as a scare tactic to energize the base.