September 23, 2005

Taking Abortion Away from the Supreme Court

Marc Comtois

Though I think he's indulging in a flight of fancy (heck, I'm conservative in both my politics and my expectations), David Gelernter has a politically "radical" (and he offers, "conservative") proposal regarding the ever-present abortion debate. First, his reasoning:

The abortion issue is a catastrophic wound in U.S. cultural life. It has inflicted unending battles on American society ever since the Supreme Court seized control of the issue from state legislatures in 1973 — in one of the grossest power grabs American democracy ever faced.

Young people pondering U.S. democracy today might easily conclude that all really important laws must be decreed by the high court.

We could heal the abortion wound, end the battles and reaffirm the integrity of American democracy if we had the guts to use the Constitution's own mechanism for introducing big, permanent changes to American law. We should get Congress to propose and the nation to ratify a constitutional amendment.

As for specifics, Gelernter further opines and proposes:
Overturning Roe, moreover in the face of majority support, would be a spectacular gesture for the Supreme Court, which no longer likes making spectacular gestures.

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.

Obviously, pro-abortion liberals would gain if such an amendment were ratified. Anti-abortion conservatives would too — not in their fight against abortion, perhaps, but as Americans. They can live in a nation where abortion is legal and democracy is under a cloud, or a nation where abortion is legal and democracy has been resoundingly reaffirmed.

Abortion poses vitally important problems, but liberty and democracy are even more important. If we lose them, we lose everything — including all possibility of making things better in the future.

To pass a constitutional amendment is hard, but plenty have been approved in short order. . . . The ratification process would give conservatives a chance they haven't had for years, to make their case to a public that is empowered to act. If the amendment were ratified, which would be likely, abortion rights would at least be backed by the legitimate authority of the people instead of the usurped authority of the court. Democracy would have been vindicated. When the people finally have a chance to speak, this wound would finally have a chance to heal.

It seems to me that the chance that the Supreme Court would render itself moot on the question is low. Thus, the real question is: will the political class be willing to undertake such an effort, with or without the Supreme Court's abdication on the issue?