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Friday, September 23, 2005

Gelernter's Amendment

Yale CS professor David Gelernter offers some thoughts on abortion in this LA Times editorial.   After offering a wild-eyed rabble-rousing trivial  tempered  critique of Roe  ("Make-a-Wish theory of jurisprudence"; "closing their eyes and wishing hard"; "Rube Goldberg democracy"), he turns to a more serious  policy proposal:

How can democracy reassert itself given American political reality? Congress could propose, and the nation could ratify, a two-part constitutional amendment.

Part one would legalize abortion with suitable restrictions. Part two would nullify Roe and reaffirm that only Americans and their elected representatives have the power to make law in this nation. All courts would be implicitly instructed by this slap-in-the-face clause to butt out of law-making.

If we were to take Gelernter seriously (for a moment, and ignoring the slur that the Justices aren't "Americans") what would "Part Two" look like? 

In the early part of the 20th century, progressives who feared the Lochnerizing court suggested an amendment that would require 7-2  supermajority votes by SCOTUS to overturn federal statutes (Learned Hand, whose biography by Gunther I am currently reading, suggested that the supermajority requirement be confined to 5th and 14th amendment DP decisions).  Would this requirement solve Gelernter's problem? 

Tough to say.  The answer turns on what he means when he says that only the legislature  can  "make law in this nation"? 

Posted by Dave Hoffman on September 23, 2005 at 11:12 AM in Constitutional thoughts | Permalink


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I don't consider myself an "expert" on Roe, mostly because I don't know what it would mean to be an expert. I've read the case; the cases it cites; the cases it spawned; and the literature that surrounds it. So I think I'm qualified to talk about it a little bit. And knowing what I know, the op-ed's critique is eminently reasonable (while I withhold my opinion as to whether I agree with it). In other words, if you trust me (and I don't know whether you do, or whether you should), you have my word that--rhetoric aside--the piece is reasonable. So who cares who wrote it?

As for your thoughts on populism, you are certainly entitled to your view. Of course, the amendment procedure is NOT direct democracy, nor is it majoritarian democracy. It has a great deal of built-in checks and balances. That's precisely why we amend so infrequently. But even putting that aside, I'm certain you can understand why some people (in recent tradition, it is mostly conservatives; but there is a growing liberal voice on this side too, and I include myself somewhere within that liberal mix) like the idea of majoritarianism/democracy on questions like abortion--i.e. social policy issues regarding which the country is deeply divided and without any plainly applicable constitutional provisions.

These are serious issues regarding which serious people, even those not driven by political ideology, can and do disagree. The op-ed--particularly BECAUSE it is by a non-lawyer--is a reasonable place to start.

Posted by: Hillel Levin | Sep 24, 2005 8:09:01 PM

Some rebuttals to and clarifications in light of Mr. Levin's post:
You're certainly right that no one needs a law degree to have an opinion on Roe. My contention is that I can get an opinion on Roe (and everything else!) by turning to any random person; and I can get analysis on the majority opinion on Roe by turning to a trusted third-party poll. I turn to a newspaper's editorial section for more than just "some guy's opinion"; I feel that it's the duty of a newspaper to provide informed opinions to better equip voters. I feel that the LA Times isn't best fulfilling this duty when they publish editorials of this kind, where the author doesn't have any special knowledge of the issue and the over-the-top rhetoric undermines the argument. (I further speculate that the LA Times does this quite deliberately on some issues.)

I understand that his view that abortion be should legal (and properly restricted) is quite mainstream. But a constitutional amendment that codifies even a popular position is not in itself a mainstream idea, and one that in part redefines the balance of power is pretty radical. Again, he's entitled to his opinions, and he brings up some interesting discussion topics. But this is the editorial page of a major newspaper; very few opinions get the level of exposure that this one just did. Wouldn't the LA Times have served the proceduralist position even better by printing a less-over-the-top editorial by someone with stronger credentials than "man on the street"?

With regards to democracy itself; I'm glad the editorial calls for representative procedures (a constitutional amendment). And you're right; judges are flawed too, and fortunately they're balanced and checked. But the undercurrent to the writer's argument seems to be a strong pro-Populist stance that I hear repeated in reference to many different issues: The mainstream American opinion is that Law X is best. This means a direct democracy would enact Law X. Because of this, and only because of this, the mechanisms of representative democracy should be bent to produce Law X. In this case, bending the mechanisms includes a constitutional amendment to weaken the Judicial branch. Certainly this is an extreme position.

And, for Mr. Gowder:
I also have a PhD, and the one thing it's taught me is that I don't have the credentials to speak about *anything* -- not even my own field. :)

Posted by: HeScreams | Sep 23, 2005 5:25:57 PM

Besides, presumably the guy has a PhD, which as we know is the transcendent academic credential! :-)

Posted by: Paul Gowder | Sep 23, 2005 2:52:29 PM

He Screams:

Putting aside the substantive question about the meaning and value of democracy, I'd like to address the other point you make.

I too was surprised to have seen a computer science professor picked for this kind of opinion piece. However, on reflection, I don't see anything wrong with it. The law belongs to all of us. And one need not be a high-fallutin' ivy league law professor type to have an opinion on Roe. Indeed, with respect to his opinion that Roe is a very bad legal opinion, he is in good company, and nothing he suggests in the op-ed breaks any new ground. The same is true for his procedural critique that this issue should be left to the people. In other words, he isn't making radical claims about Roe, although his rhetoric is not exactly restrained. You are entitled to disagree with him, and even to discount him entirely; but the things he says do not require a law degree.

Further, with respect to his substantive position -- that abortion should generally be legal, with some restrictions -- this is the very mainstream of American opinion, not some wackadoo and radical proposal.

Returning to your position that The People don't always legislate well, you are certainly correct; but to what end? What makes you think that The Judges would legislate better?

I repeat: the law does not belong to the lawyers. And while I don't go for the kind of rhetoric spewed in the piece, the position taken is one worth considering.

Posted by: Hillel Levin | Sep 23, 2005 1:39:11 PM

Tangentially: Why is the LA Times giving a Computer Science professor such a forum to discuss his opinion? His speciality is Computer Science; he knows about as much about constitutional law, the effects of his policy recommendations, or representative government in general as any random person taken off the street.

I've often wondered if the LA Times (and other editorial pages) deliberately sabotage viewpoints they don't agree with by choosing for publication a radical or just plain stupid editorial representing the "other side". By doing this the paper can claim that they're giving equal time to both viewpoints, while undermining the "wrong" view by allowing the most foolish sounding proponent of that view speak for everybody in that camp. This editorial is just more evidence, although I haven't conducted any kind of actual scientific study of the matter.

Don't get me wrong; I'm not advocating for either pro-life or pro-choice forces. But certianly this is a topic where reasonable people have a lot to discuss and debate; I want to hear those conversations, not the views of extremists and people ignorant of the issues.

Turning to the argument itself, but without attacking the editorial point-by-point: why do people assume that the majority opinion of The People would make good policy? (That seems to the the editorial's crux.) Isn't the whole point of representative, separated (Federal/state), multi-branch government that direct demoncracy is flawed, and all these mechanisms are needed to filter the will of The People into wise policy? The People -- and their government -- were wrong about slavery, American Indians, minority rights, and womens rights, repeatedly throughout history. So what makes anyone think The People are right this time? (Cross-reference same-sex-marriage discussions, as well.)

Posted by: He Screams | Sep 23, 2005 1:17:56 PM

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