Carhart Crazy

UPDATED June 2nd

I avoid arguing about abortion policy, in part because I have no strong or fixed views on the subject. I do debate the law of abortion, about which I have sharp and seriously held views--that Roe and Casey are unsupported by the Constitution and unsupportable decision making. Many who support legalized abortion agree. Further, I fault pro-abortion arguments ("a woman's right to control her body") that, taken to their logical, libertarian, and individual liberty end, would void much of the governmental regulation of individuals and business beloved by the left ("if you don't like nuclear plants, cut your power lines and install your own solar panels"). And the abortion cases, like most "living Constitution" jurisprudence, is rooted in disdain for the democratic process--specifically, popular sovereignty.

This post isn't about abortion--but it is about Justice Ginsburg's dissent in last week's Carhart decision, upholding a Congressional ban on "partial birth abortion." Though I've often disagreed with her jurisprudence, I've always respected and admired Ginsburg, the poster child for well-qualified liberal justices. But her Carhart opinion (joined by Stevens, Souter and Breyer) is batty:

• Legislative facts: Ginsburg's primary argument is that Congressional hearings were biased and their factual findings wrong: "The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection. . .[T]he oral testimony before Congress was not only unbalanced, but intentionally polemic." So what? Constitutionality is about text, not hearings. Congress can legislate without hearings; Congress can legislate and disregard testimony and -- as I have previously argued -- off-record motivations for Congressional votes are irrelevant. If a bill commands a majority, and is signed by the President, the fact that only supporters of the law testified makes no difference--legislative factual findings have no significant weight, and courts are not a per se superior authority with respect to facts.



• Moral Concerns: Ginsburg faults the majority for conceding that "Congress could . . . conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition." The supposed unconstitutionality of laws based on morals has become a fetish of the left--but where is such a prohibition in the Constitution? And don't we vote for Senators and Congressman whose views and outlook we agree with? And if you disagree, elect someone new--because the next Congress can change or repeal the law.

For Ginsburg, the law was void because "Congress’ findings could not withstand the crucible of trial." But Article I isn't Article III; Congress is Congress, and Courts are Courts and never the twain shall meet. Law-making isn't a trial, and the Constitution doesn't specify otherwise, whatever Ginsburg says.

[Added June 2d] Congress, and the laws it adopts, doesn't have to be correct--only Constitutional. Legislation can be "wrong" (subjectively or objectively) and still be a valid exercise of authority, passed via proper procedure--and thus Constitutional.

Congress thought partial birth abortion "yikky." Ginsburg disagrees. That doesn't make the legislation unconstitutional--but it may be part of the reason why there's a Democratic majority today. Ginsburg's reluctance to rely on democracy makes the dissent in Carhart a poster child for what's wrong with lefty law.