Monday, September 26, 2005

"Conservative" Ineffectiveness, Exhibit A: Partial-Birth Abortion

First, I must apologize to my regular readers for my absence. School has been keeping me rather busy unfortunately, and I simply haven't had the time to sit down to write. Nonetheless, I am back, at least for the moment. For partial birth abortions are back in the news, at least as a sort of a footnote and I felt that it couldn't hurt to grace the topic with my opinion.

The Bush administration has asked the Supreme Court to reinstate a ban on a procedure that critics call "partial birth" abortions, setting up a showdown that could be decided by the president's new choice for the court.

The appeal, which had been expected, follows a two-year, cross-country legal fight over the federal law.

An appeals court in St. Louis said this summer that the ban on late term abortion is unconstitutional because it makes no exception for the health of the woman.

First off, I hope all the pro-lifers are thrilled with all Bush has done on the abortion front. He passes a ban on a rare kind of abortion that all but the most callous pro-choicers would balk at. Then this wimpy law was over-turned in court.

Now, since I'm a state's rights guy, it may seem hypocritical to bash Bush for not getting something done that I wouldn't do myself. Unfortunately, state's rights are no longer applicable on any legitimate basis. Thus, playing hardball may be the only way to go.

Does this mean I am turning my back on my Constitutional principles? I say, no. If liberals are going to use the courts to get their agenda passed, is it not time for conservatives to do the same thing? If I sound conflicted, know that it is because I am.

After all, allowing the courts to legislate on an issue that falls under the jurisdiction of the states is by definition and increase in federal power, that is, an anti-conservative measure. So it seems that conservatives--those of us who actually wish to limit the power of the government--are caught quite soundly.

The revolution, when it comes to abortion or any other issue, must come from the legislature, but the court must let the legislature be. This sounds like it'll take a lot of work. If we can't even get a ban on partial birth abotion, how will we set up a legitimate conservative government that does not milk the taxpayers and infringe on liberty.

I could just stop being a dreary pessimist, ignore the facts and put on an optimistic air like Limbaugh does.

What fun would that be?


troutsky said...

At least you are thoughtful and understand the contradictions, unlike Oxyman.What is needed from you conservatives is a much stronger definition of "legislating from the bench", a clear demarkation point where it can be seperated from "interpreting the law".In that it is impracticle, if not impossible for every statute passed by a state to foresee every possible circumstance, include every possible remedy for every possible application, we have a non-partisan judicial branch to help out with it's process of appeals to act as check and balance. Here in Montana we have states rights advocates saying the constitution allows a jury to nullify the law a person is being tried under. A scary proposition. Another possibility is to have a referendum of the people to try every case where the interpretation of the law is in dispute,perhaps a bit impractical or have representatives decide for us, which led to the Civil War and Jim Crow and separate but equal etc.Some of these legislators out here are fringe lunatics (as they would call me) and need a legal check on their power.

A Wiser Man Than I said...

What I see as the biggest problem is this. If we have judicial review, we are left to the tyranny of the court. This is, what I would argue is happening now and will only get worse as the court realizes just how much power they have.

The other proposition is that the legislature gets the power. The constitution may prohibit the Congress from doing such and such a thing, but without a high court--or some power to check their power--Congress can do whatever they wish.

In the end, I think that the founders set up a pretty good system, but all systems tend toward chaos. In some time we'll get to try to set up a different government.