The Abortion Argument We Missed

[KevinTheOmnivore]

Originally Posted by Big Papa Goat

The problem with judicial activism like this is of course that it circumvents democratic politics. The beauty of a good democratic system is that no one group representing any one viewpoint can have its values imposed on the rest of society without compromising with other groups representing opposing viewpoints. That way, in a healthy democratic system, no one ever gets really alienated or oppressed, or subjected to government actions entirely against their beliefs or interests. In that sense, judicial activism is a bad thing, since judicial rulings have a tendency to make things a bit black and white.

I'm not a huge fan of even the phrase judicial activism. You mean judges buck the will of the masses in order to act on precedent and rational conclusions!?? Who would dare think up such a thin!? I mean, aside from James Madison, et. al....


Anyway, there's one point here Goat (despite you calling it "bullshit") that I think you missed. Will is going after "activist judges" here, but he's also questioning the constitutionality of Roe vs. Wade. Will, being an anal strict constructionist, questions not only its democratic tenents, but its legal ones as well (hence why he brought up the 14th Amendment, etc.). It's an interesting point I think, and it's actually one held by folks across the spectrum. The New Republic, for example, holds an editorial position of being pro-choice and anti-Roe.

That being said, issues like abortion, gay marriage, and other such religiously contreversal issues sometimes don't lend themselves very well to compromise or democratic decision making. There are a few reasons for this, one of which is views on such issues are usually polarized, limiting the capacity for compromise, and making the competition between groups representing different views a little bit intense for peaceful democratic discourse.

You couldn't get any more polarized on this issue than we already are in America. It's interesting, because I think what we've seen with judicial "fiat" on the matter is sort of the opposite of what you just said.

Whenever polled, most Americans tend to have a very logical and moderate opinion on abortion. They want it legal, they want it available, but they want it limited and not necessarily on demand. This is a far cry from the two screaming children you have on both sides of the issue today. One reason may be that because the issue was removed from the state legislative bodies and placed in the courts, it took the debate away from deliberative bodies, and handed it to the monied interest groups. You don't have a republican debate/discussion going on, you have two sides screaming at each other, trying to scare the other side into not acting. This isn't functional democracy, and I wonder whether or not it would be worse if Roe vs. Wade were overturned.

Another big problem is that issues based on religion or othersuch serious matters often involve disputes of foundational, high-order values. For instance, although it might be argued that this is not always the form of the abortion debate, a person who believes that God is telling him that abortion is wrong will have no common ground in a debate with a person who has no such belief in God, and holds individual liberty (say) as their highest value.

But as Will points out in the article, you don't need to be a Christian extremist to oppose abortion. After all, there are restrictions on liberty. Mill believed that whatever doesn't hurt or hinder someone else is fair game, but that isn't stated really anywhere in the Constitution. In a sense, thanks to the 10th Amendment, you could argue the states have more of an entitlement to rule on abortion than the federal government does.

Compromise is difficult in such a debate since neither party can be expected to seriously tolerate the other parites values being put into practice in any way, since the polarization between the values of the parties involved prevent make the debate represent a zero-sum conflict. Either party would have to compromise their own values to allow for the other parties values to be represented in the government.

You're right, however there's a difference between a partisan judge and a partisan legislator. The latter has to answer to a voting public, which can have a surprising effect on how politicans act and speak. Judges (thankfully!) are rarely held to the same standard.

I think if abortion were a state issue (much like gay marriage is), you would see shades of variation from state to state. I'm sure you can name the states that would be less and more supportive of it.

people that disagree strongly can't get along. What makes that important for this issue is that while the undemocratic nature of judicial activism has its problems, democratic politics are not ideal for soving such issues either.

But the counter to that is that this form of judicial activism may not be the masses versus the discretion of several really smart judges, but rather the masses versus some really smart judges who are in the pocket of either pro-life or pro-choice interest groups.

Think about it, when we nominate judges here, it's rarely about qualifications, and always about where they stand on abortion. One polarizing issue has almost entirely framed the way our system works, because it allows two powerful factions to scream really loud if they don't get the "right" kind of judges on the bench.

And again as Will points out, they sort of primed the pump on the issue, so to speak. Fully realizing that our Supreme Court is built to rule on precedent rather than policy, the Left in the 1970's pushed certain cases in order to get it to the Court and get a ruling in their favor. It almost highlights a flaw in our system.

Anyway, I was actually more intrigued by the second article. Whereas Will is arguing over law, the second article is raising a point from the male perspective on the matter, which has been all but squelched in this argument by groups like NARAL and NOW.