Thursday, January 12, 2006

All Roads Alito Roe v. Wade

There is an odd disconnect in the discussion of Judge Alito in general, and his views about abortion rights in particular.

I have seen it many places, but most recently in Aria Branch's January 12 column in the Duke Chronicle, "An Assessment of Alito." Specifically, she said: "The bottom line is that the majority of Americans embrace the fact that it is the decision of a woman to choose whether or not she wants to have an abortion. Judge Alito's views'are out of line with mainstream America." (A question: Then why do a majority favor confirmation?)

Roe v. Wade was a decision that blocked majoritarian restrictions on access to abortions, passed either through the U.S. Congress or the state legislatures. If Roe v. Wade is overturned, all that would happen is that democracy would break out. That is, the state legislatures would pass, or not pass abortion restrictions, depending on the views of majorities of citizens.

If Ms. Branch is right, and most Americans favor abortion rights, overturning Roe v. Wade would have no consequence whatever. The only circumstance where anyone could worry about Judge Alito, on abortion rights grounds, is if a majority opposes abortion rights. In her article, she says that if Alito is confirmed, "the government could have the power to take away what many would consider the most intimate decision some women make in their lives."

Well, no. The "government" can't take it away. That would be your fellow citizens, passing repressive laws by majority rule. We have met the government, and it is us.

On that, three observations:

(1) It is not clear a majority of Americans favor abortion rights. It depends how you ask the question. It is clear that most Americans favor at least SOME privacy rights in this area.
(2) Why is it that so many people who believe they favor democracy also favor Roe v. Wade, which prevents majorities from working their will? I am fine with this; as the hot chick over at Flying Hedgehogs says, "down with democracy."
(3) On the merits, I agree entirely with Ms. Branch: privacy rights, along with the fundamental rights spelled out in the Constitution and the Bill of Rights, are all important. But it is precisely because they thwart the rule of the mob that those rights are important.

Unrestricted democracy is two wolves and a sheep deciding what's for lunch. We can't rely on democracy to protect privacy rights, almost by definition. The problem with Alito is not that a majority of Americans disagree with him. The problem is that they might.

UPDATE: Bush's position on R v. W is more ambivalent than many people think. He didn't care HOW people got out of New Orleans.


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