Truth Hurts

A case study in rightie “logic” — Captain Ed writes that “Alito blew Chuck Schumer out of the water on abortion.” Here is the section of Senator Schumer’s questioning to which the Captain refers.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That’s in the First Amendment.

SCHUMER: So why can’t you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before so any idea that you’re approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you’re refusal I find troubling. And it’s sort as if I asked a friend of mine 20 years ago — a friend of mine 20 years ago said to me, he said, you know, I really can’t stand my mother-in-law. And a few weeks ago I saw him and I said, “Do you still hate your mother-in-law?”

He said, “Well, I’m now married to her daughter for 21 years, not one year.”

I said, “No, no, no. Do you still hate your mother-in-law?”

And he said, “I can’t really comment.”

What do you think I’d think?

ALITO: Senator, I think…

SCHUMER: Let me just move on.

Just who blew whom out of the water? I think your answer depends on your values. If you value honesty; if you value liberty; if you value the principle that We, the People, rule this country — Schumer wins. If, instead, you value raw power and winning at any cost — Alito wins.

It’s obvious to everyone on both sides — although not to most reporters — that Alito is evading questions. There is only one reason he couldn’t give Senator Schumer a yes or no answer — he doesn’t want the Senate, and the nation, to know what he really thinks. Certainly a nominee shouldn’t answer questions about cases that might come before the bench. But let’s look at how Ruth Bader Ginsburg handled similiar questions [PDF]:

Senator Leahy [D-Vt.]:
Senator Metzenbaum had asked you whether the right to choose is a fundamental right. Is there a constitutional right to privacy?

Judge Ginsburg:
There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone.

The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life’s course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make decisions about one’s life course.


Judge Ginsburg:
[Y]ou asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.

Now, is there any question about what Ruth Bader Ginsburg thought about a woman’s right to choose an abortion? On the other hand, all we get out of Alito is, in effect, It depends on how you interpret the Constitution, but I have an open mind.

Sure you do, son. And I’m Queen Victoria.

The PDF document I cite above as a reference to Ginsburg contains more quotes relating to the infamous Casey v. Planned Parenthood decision, in which Judge Alito played a part. If you compare Ginsburg’s views on Casey to Alito’s, it is obvious that their ideas on what “privacy” actually means — indeed, on what liberty and personal autonomy actually are — are worlds apart. Alito may say he supports a “right to privacy,” but clearly there should be big, prominent warning labels on that assertion — restrictions may apply; void where prohibited.

I’ve written in the past that, IMO, the notion the Constitution does not protect a right to privacy (because, you know, the word privacy just isn’t in there anywhere) misses the whole meaning and purpose of the American Revolution and Bill of Rights —

… the Constitution recognizes all kinds of rights to be “left alone by the government.” Roe v. Wade argues that the First, Fourth, Fifth, Ninth, and Fourteenth Amendments put together protect a right to personal privacy, and that this right had already been recognized by many prior decisions. I’ll paste a part of the Roe decision explaining this at the end of this post.

But for the moment let’s step away from examining clauses under a microscope and look at the bigger issue of political liberty. The whole point of it, and the raison d’etre of the Bill of Rights, is the notion (revolutionary in the 18th century) that citizens of the U.S. were not subjects whose lives and property could be messed with on the capricious whims of the sovereign. The underlying philosophy of our government is that citizens are to be free of interference by government unless government has a compelling reason to countermand the free will of citizens. And even then, government must jump through various hoops–the due process of law thing–before requiring a citizen to do something he or she does not want to do.

You know how it is with righties — they like to talk about freedom, but really, to them, freedom’s just another word. And it’s a word that applies only to them and their agenda. They don’t mean for the rest of us to have it.

Update: See Scott at Lawyers, Guns and Money.