In recent snippet of interview, Gov. Palin suggested she disagreed with Roe because she was pro life, but also supported the constitutional right to privacy that underpins Roe (and Griswold v. Connecticut and Eisenstadt v. Baird). This suggests a sort of basic confusion about Constitutional law, but never mind that. It also reminds me of something else I’ve been meaning to talk about.
Mainstream pro-life theory attacks the idea of Constitutional privacy as enshrined in these three decisions (and, later, Lawrence v Texas), and their main weapon is the doctine of Constitutional originalism, or the idea that the text of the Constitution must be interprested as normal persons of 1789 would have read it. Adherents to this theory insist that the idea of a penumbra of rights implied in the privacy decisions is invalid, since it’s not part of the original text. (This is tenuous, but stay with me.) (It’s also this theory that suggests to Scalia that torture is not “cruel and unusual punishment” because it’s not punishment; it’s interrogation — and that consequently torture isn’t unconstitutional.)
But here’s the thing: I’ve yet to meet anyone, ever, who holds to this point of view, but also believes abortion ought to be legal. On the contrary, it appears that this POV is adopted exclusively by persons who wish to see an end to safe and legal abortions in this country, and who view this as an issue of paramount importance. (N.B. that the absence of Constitutional privacy doesn’t mean abortion must be illegal; it just means that the government would be free to make laws forbidding it.) This strongly suggests to me a measure of intellectual dishonesty among the originalists — that they have simply picked a philosophical structure that supports their desired outcome. This is certainly convenient for them — and is made more so, and at least slightly respectable by such high-profile proponents as Scalia and his manservant on the Court — but doesn’t suggest overmuch analysis of related ethical or legal questions. Picking an endpoint and eliminating schools of thought until you find one that supports your conclusion is pretty bankrupt — it’s the philosophical equivalent of picking a scientific conclusion and discarding evidence that fails to support it.
So, dear Heathen Nation, find me a pro-choice originalist. I’ll be right here.