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FUMARE

Law, culture, and Catholicism...up in smoke!

Friday, July 08, 2005

"The Constitution is what the Supreme Court says it is."

Rumored Supreme Court nominee Alberto Gonzales apparently gave the above response when asked whether the U.S. Constitution addressed the issue of abortion. Here's the follow-up:

Q: We're hearing conflicting reports about your position on abortion. Can you tell us where you stand?

Gonzales: As a judge, I have to make judgments in conformity with the laws of our nation.

Q: Would you say that, regarding Roe v. Wade, stare decisis would be governing here?

Gonzales: Yes.

Now, were we to give Gonzales the benefit of the doubt, we might conclude that the Attorney General's apparent deference to stare decisis is a red herring. After all, Justice Scalia has already demonstrated in his dissent in Lawrence v. Texas that, given the current Court's manipulative and result-oriented approach to stare decisis, the criteria used to overrule Bowers v. Hardwick also require that Roe be overruled.

But I don't think this is what Gonzales had in mind. I think Gonzales has failed to make the critical distinction between the Constitution and constitutional law, a distinction Justice Frankfurter had in mind when he wrote: "The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." The distinction is obvious. If Supreme Court jurisprudence were equivalent to the Constitution itself, the Court could no more overrule its prior decisions, as it has done on numerous occasions, than it could overrule the First Amendment. Roe is not unassailable.

I may be just a passenger on the conservative bandwagon, but I don't like Gonzales as a nominee for the Supreme Court.

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