State Interests in the Primary Process

Friday, April 13, AD 2012

I’d like to post a question that reader G-Veg sent to me regarding states and the primary process.

Cursory research suggests that the most common reason cited for states running Primaries is to avoid fraud.  This is certainly the reason cited by Progressives in Teddy Roosevelt’s time for campaign reform.  While not strictly focused on Primaries, 19th and early 20th Century Progressives made huge strides in dismantling political machines.  (Interestingly, at least in Pennsylvania and New York, primary contests have been paid for and managed by the state for as far back as I could research on line.  In Pennsylvania, for example, election officials ran primary contests at least as early as Lincoln’s election and there are records of New York City primaries for Mayor going back to 1850.)

Research suggests that we’ve been doing state paid for and managed primaries for quite some time with almost no thought as to whether there is even a legitimate state interest in the contests to begin with.  I suggest that there is no legitimate interest and that state patronage is both unconstitutional and irrational.

First, I’ll note what we all know: that we have a “Two Party System” by default, not law.  The Constitution of the United States makes no mention of the country’s political makeup or character.  That reality gives particular significance to Washington’s warnings about factionalism.

Second, the argument that State sponsorship controls fraud is, itself, a farce.  It does nothing of the kind because the “back room deals” Progressives sought to control continue to rule the process.  It seems like a well-intentioned but failed experiment.  It is an expensive one too.  In Pennsylvania, for example, a statewide election, whether primary or general, costs a touch more than $1 million (2010).

Third, even if State sponsorship controlled a host of ill effects like fraud, disputed outcomes, and mob selections of candidates, the state has no interest in contests.  So what if Party X chooses a union bullied candidate or one purchased lock, stock, and barrel by monied interests?  Party X can do what it wishes.  They can select by heredity if they want to.  As long as there is a robust general election, how candidates get on the ballot is largely irrelevant.

Fourth, state paid for and managed primaries force out of elections many millions of qualified citizens because there can never be more than two “real” parties as long as the coercive powers of the state are used to keep alternatives marginalized and disenfranchized.  Surely the state has an interest in promoting greater levels of public service among the citizenry and anything that discourages such participation should be overhauled.

For these reasons, I believe that states should stop paying for and managing primaries.  I’d like to hear your thoughts.

Personally I don’t think there’s much under the constitution that would allow the federal government to get the states out of elections, and any large-scale attempt to get the states out of the business may only enhance the power of the two-party system.  But I’d like to hear thoughts on this.

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11 Responses to State Interests in the Primary Process

  • Do away with party registration. Let’s have real parties that you have to join (as opposed to ticking a box on a form). Thus only dues-paying members get to vote on who will be a candidate according to its own rules.

    This will never happen of course, but it’s fun to imagine what rules the parties might come up with

  • At least from my reading of the Constitution, we don’t even need to have primaries. There is nothing in the Con itself that prohibits anyone, assuming they meet the qualifications, from being on the ballot (at least not in the Con itself) or writing in whomever you please. But then, I don’t see anywhere in the Constitution where we (joe citizen) actually elects the President/ Vice-President. This is left to “electors” appointed as each state legislature directs. Theoretically, these electors could choose whomever qualifies for the office, even if the citizenry had never heard of him or her.

    The practiced reality, of course, is quite different. There is probably not a very practical way of doing it without state involvement with primaries, and I don’t see how it would improve things anyway. TV coverage and advertising is what makes candidates, so whatever system you have, you still need money backers and party apparatus, and that is where the corruption comes in.

  • This seems a very interesting concept, though I might be reading G-veg’s proposal incorrectly. The idea that the primary process is just a way of winnowing down the selection of candidates into just two major candidates does seem a bit of a waste when situations like the one we had this year happen that the “major party candidate” is not at all the one most people in the designated “constituency” is excited about. To have multiple national conventions selecting candidates to go up against each other in a presidential election that really pits all the candidates against each other seems interesting. I’m not a history buff in the least. How was it done in earlier presidential elections? Who selected the party representatives? From what I can recall it seems that at most there were only ever 4 candidates vying for the presidency, but I don’t know how they entered the race.

    I’m all for saving money and making the elections even more representative of the national population and not having to settle so often on the “major party candidate.” I just don’t know exactly what it would look like. Nor, as you say, Paul, how it would start to happen. Again, not a history buff (though I would like to be).

  • I am confused. If you don’t have a primary then what do you do? Just not have an election? Sorry – but that makes no sense.

    The point of the primary is to find out who is going to represent that party – what could possibly be wrong with that?

  • The point is not that there should be no primaries but that the State shouldn’t be in the business of determining who the candidates for parties are. The State shouldn’t pay for and manage the selection of party candidates and should confine itself to overseeing the General Election.

    Consider that there are several dozen third parties in the US. The Libertarian Party is probably the best known but we have a Green Party, a Communist Party, and a Constitution Party as well. Set aside, for a moment, any feelings you may have about the ideologies of these non-main stream political parties.

    Why are they any less deserving of State sponsorship than the Democratic or Republican Parties?

    As it stands, the State pays for and manages what is, in essence, a party activity. The result is that the State uses its coercive powers to reinforce the extra-constitutional requirement that one be a member of one of the two main parties if one is to hold elective office. Indeed, since only members of the two main parties can get elected due to State manipulation of election laws and administration of voter registration, the State determines their citizens’ vote.

    If the disenfranchised were in a protected class, the very same actions would be acknowledged by all three branches of government to be unconstitutional. Since the disenfranchised are those with different political views, we allow it.

    The result is the same, the victims are different.

    What if we were to say to the two main parties (I acknowledge here that this a theoretical point since the only way to make this happen is for the representatives of the two major parties to voluntarily cede power) “you may place whomever you wish on the ballot and may arrive at your choice by whatever means you wish but the State will not pay for it and will not manage it”?

  • For what it’s worth, not that G-Veg is arguing for the abolition of primaries, but the current system is of a recent vintage. At least in terms of the presidential nomination process, primaries did not become the almost exclusive means of nominating presidential candidates until 1972. There had been primaries held for many decades before then, but the system was a combination of open primaries and closed party conventions, and the nominees were decided at the national party conventions. I’m not necessarily advocating a return to the older way of doing things myself, but am merely pointing out that primaries are not the only way to determine nominees.

  • “The point is not that there should be no primaries but that the State shouldn’t be in the business of determining who the candidates for parties are.”

    it’s not the ‘State’ that decides. It’s put up to the people of that state to select.

  • I am really ignorant about this. I did not know the state controlled the primaries. i thought that the parties did– in State A, the State A Repubs would control the A Repub primary. Not right?

    re: state paid for and managed primaries force out of elections many millions of qualified citizens because there can never be more than two “real” parties as long as the coercive powers of the state are used to keep alternatives marginalized and disenfranchized.

  • My understanding is:

    1) Party members in that state fund the primaries.
    2) Citizens, not the State, elects who they want representing their party during the primaries by a fair vote.

  • I think G-Veg is being rather punctilious in his complaints. The expense of primaries is a trivial component of state and local budgets, a legal architecture is necessary for allocating ballot access, and the distinction between generic voluntary associations and ‘official’ parties is observed in other countries. It would not surprise me if you could demonstrate that primaries were a contributor to the development of a sterile political duopoly, but I will wager you there are two or three stronger vectors.

    1. We have an unadulterated first-past-the-post electoral system.

    2. There are social and cultural cleavages in American society, but the manifestation of them in particular persons tends in our own time to be strongly correlated. People who are on side A in one nexus of disputes also tend to fall on side B in another nexus of disputes, so you have a political party which promotes both.

    3. Sheer inertia.

    Several modifications:

    1. Supplement the election of legislators single-member district constituencies. Each party would nominate a reserve list of at-large candidates in addition to its district candidates. The sum of votes received by its candidates in all constituencies compared to the sum of votes received by all candidates in all constituencies would determine the number of seats the party received in the legislature. From that total, you would subtract the number won in district contests and then fill in the remainder from the reserve list. The reserve list could be constructed from the party’s unsuccessful district candidates. Simply rank-order the party’s unsuccessful challengers according to the ratio of votes they received to the ratio of votes received by the winning candidate in their district and then rank order behind them the party’s defeated incumbents according to the same metric.

    2. Relax the requirement that districts be equipopulous, develop a practice manual for the construction of districts which delineates impersonal rules for the construction of districts, and devolve any residual discretionary decisions over district lines to panels of local trial judges. You do not need precisely equipopulous districts, and it is (I would submit) better for particular counties and municipalities to be represented as integral wholes. What you need is to avoid systemic over-representation of certain interests in one election cycle after another. (As used to be the case in apportionment of state legislators).

    3. Require at the very least rotation in office for legislators. No one serves more than eight years in any bloc of twelve.

    4. Adopt a practice of ordinal balloting for all competitive elections. Have voters rank-order the candidates on the ballot rather than simply casting a ballot for one to the exclusion of the others. Count ordinal ballots as follows:

    a. Tally the first preference votes of each candidate
    b. Take the ballots of the candidate in last place and distribute them to the other candidates according to the second place preference of his supporters.
    c. Rinse and repeat until one candidate is left standing.

    5. Have local authorities classify each district as ‘competitive’ or ‘non-competitive’ in anticipation of each election. A ‘non-competitive’ district might be one represented by a given political party for at least 20 of the previous 24 years. Because district-boundaries change, authorities will have to construct a simulation of representation by looking at who represented the various components of the district in previous districting schemes.

    6. Have different nomination schemes for competitive and non-competitive districts.

    a. For competitive districts, have each political party hold a district caucus among its card-carrying and dues-paying members. They could subsequently hold a primary among their registrants according to their discretion, but that would not be a requirement. Once the caucus was complete, the party would pay a deposit to the board of elections for ballot access, refundable with a given level of performance.

    b. For non-competitive districts, have aspirant candidates petition among the party’s registrants and then pay the deposit out of pocket. All aspirant candidates would appear on the general election ballot with their party registration listed, but none would be the party’s official candidate. The practice of ordinal balloting would excise any dilemmas and perversities that might arise from the presence of multiple candidates from a single party on the ballot. This practice would replace our current practice of having party primaries as tantamount to election in non-competitive constituencies.

  • I wonder what would happen if the presidents elected by the electoral collage had to not like being president (such as John Adam) because one major problem you run into is presidents acting like tyrants such as Andrew Jackson, Bill Clinton, and Barrack Obama.

Perry Vs. Santorum on Gay Marriage

Monday, July 25, AD 2011

At this early stage of the game, I’d say that my top  choices for the GOP nomination are two Ricks: Perry and Santorum.  The latter has as much chance as I do of actually getting the nomination, but he’ s also the one who I am most sympathetic to ideologically.

I say this all as a preamble because I’m going to disagree with parts of both of their comments from this past weekend.  Rick Perry had this to say about New York’s decision to permit gay marriage:

Perry, who is considering running for president, at a forum in Colorado on Friday called himself an “unapologetic social conservative” and said he opposes gay marriage — but that he’s also a firm believer in the 10th Amendment, the Associated Press reported.

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, the AP reported.

“That is their call. If you believe in the 10th Amendment, stay out of their business.”

Perry’s argument on behalf of federalism is completely legitimate.  For now I’ll leave that specific debate aside and focus on the tenor of Perry’s statement.  While one can argue that a state has a right to do x, it does not follow that the state should be free from criticism.  This is similar to something that Rudy Giuliani said, and which I criticized last week.  All that federalism means is that individual states have wide latitude to formulate their own laws, free from interference by the federal government.  Federalism does not mean that citizens of other states cannot criticize these decisions.  This idea that federalism entails complete silence on the doings of other states is akin to those who hide behind the first amendment when they say something silly and earn public ridicule.  Just because you have the right to do something or say something it doesn’t mean that you should do something, and citizens of other locales absolutely have the right to speak out against these decisions and perhaps persuade the citizens of the state in question to change their mind.

That said, I have a slight issue with Santorum’s response:

That prompted a response from Republican presidential candidate Rick Santorum, who tweeted overnight: “So Gov Perry, if a state wanted to allow polygamy or if they chose to deny heterosexuals the right to marry, would that be OK too?”

It’s not unfair to employ the logic of  a slippery slope argument.  There are already rumblings from polygamist groups who want to legalize polygamy now that the floodgates have opened.  That said, there are a couple of problems with this rhetorical strategy.  To me the slippery slope argument is the last refuge when all other arguments fail.  It doesn’t really address the actual issue at hand, and in fact there’s a subtle implication that the subject under consideration is not all that serious a concern.

I guess what bothers me about Santorum’s tweet is that it doesn’t tackle the issue of gay marriage head on.  I acknowledge that this is just a tweet, and Santorum has no doubt argued well on behalf of traditional marriage before.  But this smacks too much of a dodge, as though gay marriage isn’t that bad – but polygamy and the outlawing of heterosexual marriage, now that’s bad.  If the issue under discussion had been abortion, would Santorum have raised the specter of something semi-related?  I doubt it.

I’ll admit I might be nitpicking here, and that Santorum is simply mocking the absurdity(in his view) of Perry’s federalist stance.  Again, you’re not going to capture a lot of nuance in a single tweet – which says something about the nature of twitter, but that’s for another rant.  I just fear that too often defenders of traditional marriage rely upon the slippery slope argument too facilely.  If gay marriage is as bad for society as we think it is, we should argue against it on its own merits (or demerits) instead of attacking semi-related subjects.

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22 Responses to Perry Vs. Santorum on Gay Marriage

  • “While one can argue that a state has a right to do x, it does not follow that the state should be free from criticism.

    That’s exactly the idea that I thought when I first read Perry’s remarks. He had an opportunity to display some moral leadership on this issue, and he backed down.

    I know that right now he’s a governor, and he’d like for his state to enjoy the states’ rights that the Constitution calls for. But, for a man flirting with running for POTUS, he needs to show he’s capable of leading a nation.

    As for Santorum’s tweet: I think his response was fine. The institution of marriage is under attack on several related fronts. They need to be linked together in the public’s mind. His tweet might just be the motivation for someone to look more deeply into the matter. I don’t think that it will be a cause for someone to disregard the matter. It was (IMHO) a winning tweet.

  • Sorry about the bold in the above paragraph. 😳

    I wish there was a way to preview the post.

  • Frankly, I think the responses offered by both men don’t fully encapsulate their positions on the matter. Then again, this is a sound-bite culture, and they will be judged accordingly. They need to do better.

  • Pingback: There is nothing so stupid that a politician won’t say it. — The Curt Jester
  • The key problem is that it is not a “slippery slope”, it’s a fundamental shift. If marriage is just a legal arrangement, then of course, anything can be legislated and it’s just a matter of jurisdiction. If it of divine origin, then no law can declare that something is a marriage when it is not. There is no slope, it’s one or the other. There is no half way point, only a series of inconsistencies between one end an another. And it’s not the last refuge of the desperate, it’s the key defending wall on the citadel of marriage.

    It’s the very same situation with contraception. Either sex is fundamentally tied to the creation of children within a family, or it is not. If it is not, then anything is permissible. It’s one or the other.The logic is spelled out in Humanae Vitae and all the consequences spelled out in the encyclical have come to pass.

  • What Anil said. Double.

  • I find Perry’s stance wanting and cavalier at best. ‘That’s fine with me.’ If I were running for the GOP nomination, I’d cut and paste that in every ad to point out Perry’s lack of moral leadership. Santorum’s argument is valid and not slippery slope, it’s more reductio ad absurdum. If so-called ‘gay marriage’ is allowed, then why not marry 3 people, marry your mother or marry your dog?

    And what of the Defense of Marriage Act which was signed into law by President Bill Clinton on September 21, 1996 whereby the federal government defines marriage as a legal union between one man and one woman. Even though repeal attempts are under way and court challenges are pending, it’s still the law of the land as far as I know even though the Obama regime is no longer defending it. Perry, who I thought might have been a good POTUS candidate, blew it as far as I’m concerned.

    BTW, governors make much better presidents than Senators. Governors run governments; senators just legislate.

  • Several New York town clerks, all of them Republicans AFAIK, have resigned or have said they will probably resign because of the institution of SSM.

    I understand some Republicans have other priorities. But their fellow partisans are being purged from government in SSM states, thereby shrinking the party’s talent pool for future action. Perry can’t just stand on federalist principles and let his allies hang in the wind.

  • Perry killed any support he might have had from me in the primary. A concern for Federalism I think has nothing to do with whether what a state is doing is good or bad. It is too clever by half and it is dumb politics to boot in a Republican primary election cycle.

  • Imagine a governor — or anyone — admitting that while he wouldn’t marry a bicycle himself, he has no objection if someone else does. Yet ten years ago the concept of matrimony between two persons of the same sex would have rightly been dismissed as a joke, but time and quiet, subtle, incessant propaganda make even the absurd seem, well, surd. Mr. Jagneaux is exactly right, and Governor Perry, whatever his many qualifications, has displayed a remarkable lack of moral core, and thus should not be in a position of authority.

  • When two become one in covenant, marriage becomes a family. Same sex marriage is not possible in covenant or in physical reality. It is not same sex. Homosexual behavior is assault and battery. Persons cannot consent to a crime of assault and battery.

  • Thanks for the comments. I think what bugged me about Santorum’s comments was less the substance and more what I perceived to be a regular pattern of how we discuss this issue. What he said was fine, but I don’t want us to to become over-reliant on that way of formulating the issue. Granted I might be nitpicking there.

    We seem pretty agreed on Perry. I’m not sure it’s a disqualifier in my books. It is apparent that “federalism uber alles” is his big theme. Normally I’m okay with that, but the concept of federalism doesn’t mean you abandon your moral compass.

  • Assorted and unrefined thoughts:

    1) I think Christians started losing the battle to defend the sacred institution of marriage as soon as they entrusted to government for licensing and regulation.
    2) A lot of ground was lost due to 1930 Anglican Lambeth Conference (which permitted Anglicans to use artificial birth control), the legal acceptance of no-fault divorces, and the acceptance of divorce and remarriage in general by Christians.
    3) With traditional marriage so poorly defended already, we look hypocritical when opposing gay “marriage”.
    4) From a legal standpoint, state recognition of gay unions is a matter of equal protection under the law. Thus, Santorum’s tweet is partially a non sequitur. Polygamy is indeed an obvious logical extension of equal protection arguments, but such equal protection makes denying heterosexual the right to marry completely nonsensical.
    5) The Church, and Christians in general, should never accept homosexual behavior as anything but gravely sinful, but defining and regulating is not a proper function of the State.

  • The State has been regulating marriage from the days of Sumer. Until today mankind was never absurd enough to dream of homosexual marriage. The one constant of marriage was that it was between men and women. Now that is all being done away with so that a small group of people ensnared by a serious sin can receive validation from society at large. Perhaps historians will call our age The Silly Season.

  • You can’t win the marriage argument by playing defense only. That’s the problem with the whole “debate” over so-called gay marriage. It’s been given cachet by the media, putting it on a plane of being just another lifestyle.

    Traditional marriage needs no defense. It has stood for milennia as the norm of human behavior. Instead, the so-called gay agenda and all its insidious and evil impacts should be assailed by all who value what is right. Moral arguments may not succeed where legal arguments hold more sway in a secular society but they are stronger and more persuasive to those willing to examine their consciences.

  • “Moral arguments may not succeed where legal arguments hold more sway in a secular society but they are stronger and more persuasive to those willing to examine their consciences.”

    Moral arguments are always the strongest arguments long term Joe. You are absolutely correct on that.

  • If a candidate says something questionable early in the race, isn’t that the perfect time to write him letters asking him to correct his stand? Simply not voting for him won’t send the message, and won’t change the debate in helpful ways.

    The media and other actors obviously have an interest in making GOP opposition to SSM look as weak as possible, so that it will become as weak as possible.

  • but defining and regulating is not a proper function of the State

    Eric, defining and regulating is the most salient thing the state does. Always and everywhere.

  • “Eric, defining and regulating is the most salient thing the state does. Always and everywhere.”

    1) I accidentally left out the word “marriage” after “defining and regulating”. Oops. 😉
    2) The State should define nothing. Rights are natural and inalienable; they do not flow from the State. All the state ought to be allowed to do is acknowledge and defend them.
    3) Regulation is only justifiable when life, liberty, or property of one person is threatened by the actions of another.

  • So, now Perry has said that deciding abortion on a state-by-state basis is okay.

    I understand that Perry supports and defends traditional marriage and the right to life in the State of Texas, and that he’s personally committed to both of the causes, not just out of political expediency.

    I also understand that he sincerely believes that – as it stands today – the Constitution requires that states get to decide these issues for themselves.

    However, he really needs to follow up these statements of his with something like, “This such an important issue that I will actively pursue constitutional amendments to defend traditional marriage and the right to life.”

    Without saying *something* like that, it sounds to me as though he’s happy to have states do whatever they want on these issues. That’s not acceptable to me.

    Kevin J Jones, you are probably right. If I am interested in having him move in the direction I’d like to see him go, I probably should let him know. (As great as TAC is) I doubt that Rick Perry spends much time browsing the articles and comments here. — But maybe I’ll include a link here in my letter to him 😀

  • Okay, I’ll take the credit: One week after I call the Rick Perry for President hotline, he goes public on CBN, saying that he supports a Constitutional amendment for traditional marriage and against abortion. For what it’s worth.

    Now, I guess I need to call Pizza Hut about that “Free Pizza on Saturdays” idea I like to see happen. 🙂

Proposal: The Fair Fight Initiative

Thursday, December 4, AD 2008

As is observed every time we discuss Supreme Court appointments, there is very little pro-life progress possible under the Roe v. Wade regime, because anything which is seen as unduly obstructing a woman’s access to terminate her pregnancy (and thus use her constitutional right to “privacy”) is struck down by the courts. And yet, while abortion on demand is decidedly not popular according to the polls, Roe v. Wade mysteriously is. A solid majority of people way they want to keep Roe v. Wade, despite the fact that a solid majority would also be in favor of legal restrictions on abortion well in excess of what Roe allows.

It seems to me that one of the most difficult tasks for the pro-life movement is thus not to convince the population that abortion should be seriously restricted and reduced (banning would right now be a very hard sell, but it would seem that a great deal of progress in that direction would be possible) but rather to convince citizens that Roe is actually an obstacle to this. Thus, “the fair fight initiative”. The purpose would be (and the lawyers on here can inform me if this is indeed a legal possibility) for Congress to pass a law which would officially remove from the federal government (legislature and courts) any ability to restrict or allow abortion.

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7 Responses to Proposal: The Fair Fight Initiative

  • The Supreme Court reviews acts of Congress for constitutionality, and this legislation would be struck down under Roe and Casey, which both maintain that a right to abortion is present in the Constitution. Roe and Casey are an abuse of the text of the Constitution, but they are the law as long as Kennedy is the fifth vote.

    As to the questions posed:
    1) I think federalism arguments are useful to pro-lifers, but it is often noted that one’s position on federalism is often strongly governed by the underlying issue. E.g. – (the 1964 Civil Rights Act was a violation of federalist principles which I support).

    2) I do not think there would be much chance of persuading Democrats to support such an initiative because they would say it is right-wing abortion extremism clothed in federalism;

    3) I am not sure whether it would help or hurt the pro-life movement – it would serve an educational purpose for people who don’t realize that overturning Roe would not make abortion illegal, but it is also very unlikely to happen. I am inclined to think it would not be very helpful.

  • Justice Scalia was right when he said that the “sweet mystery of life” passage from PP v Casey “ate the rule of law.” With so many precedent land mines like those scattered about (Lawrence v Texas, Griswold v Connecticut, etc.), I don’t see how this could work. It’s not a bad idea, because you’ve correctly identified the misperceptions about Roe, but as a practical matter I think we (the citizenry in general) are too far along that line of reasoning.

    If, according to the Court, I get to define my meaning of existence, then I doubt I’ll be amenable to a states’ rights argument that could potentially chip away at my existential-defining rights…

  • “Roe would effectively be overturned by this in that it would be stated that the federal courts had no authority to deal with issues surrounding abortion.”

    It has long been a hotly contested question among lawyers and judges as to how far Congress can go in stripping the Supreme Court, and the lower federal courts, of jurisdiction in particular cases. Even if the Supreme Court ruled that such jurisdiction stripping legislation was constitutional, something I doubt they would do, Roe would still remain the law of the land. The state courts would almost certainly still rule that Roe established a right, under the US Constitution, to an abortion. Now if the highest court in a state ruled otherwise, than that would effectively overrule Roe in that state, since no appeal would then be available to the US Supreme Court if that tribunal had previously ruled constitutional the jurisdiction stripping legislation.

  • It’s an interesting idea. If it did, in fact, allow the states to pass restrictions on abortions, I would call it a big improvement for the pro-life side. Abortion would no longer be a “right”.

    And therefore, I think the chances are slim to none that Democrats would support it.

  • Donald,

    I think that many state courts would be fine with legislative restrictions on abortion if it was established that the Supreme Court did not have jurisdiction in this area. It would be analogous to same-sex marriage; different courts in different states would have different interpretations.

    At the same time, the Court could not uphold Congressional legislation depriving the Court of authority in this area without overturning Roe, Casey, Carhart, etc. which all assumed that abortion was a constitutional right. The federalism/legislative deference arguments were rejected in Roe and Casey; the Carhart majority must have believed the Court had jurisdiction in this area over Congress because the Partial-Birth Abortion ban it reviewed was passed by Congress. I think the proposed legislation would require Roe/Casey/Carhart to be overturned.

  • Update – Carhart would not need to be overturned, but the position of at least one Justice (either one of the dissenters or Kennedy) would need to change to uphold jurisdiction stripping.

  • The problem John Henry is that any legislative action could not be retrospective in nature. The US Supreme Court clearly did not have its jurisidction restricted when it decided Roe and, effectively, amended the constitution to add abortion as a right. That such an action was merely “a raw exercise in judicial power” as noted by Justice White, and not justified by the text of the Constitution, does not help the fact that the decision was made. I am afraid that almost all State Supreme Courts would still adhere to Roe on the basis that it was the last word on whether abortion restrictions are constitutional , as modified by the progeny of Roe such as Casey, by the US Supreme Court while the US Supreme Court had jurisdiction.

Federalist vs. Pro-Life

Thursday, October 16, AD 2008

The quixotically named Catholic blogger Morning’s Minion has a post this morning in which he (yet again) tries to make the case that the pro-life issue is basically a wash between Senators Obama and McCain. Now, I know that many of our readers already agree that MM’s conclusion is wrong, and deeply wrong, but I want to focus on why this particular argument is wrong, because I think it’s an important question for Catholics living in our republic. So I’d like to ask that people avoid basic “I don’t see how any good Catholic could vote for Obama” comments in favor of discussing whether federalism can be a pro-life position, or is simply a passing of the buck.

MM says:

Basically, neither candidate can be called “pro-life”….
OK, abortion. The starkest difference here is not related to the need to grant legal protection to the unborn child. No, the candidates instead indulged in a quaint little constitutional debate. Obama: “the constitution has a right to privacy in it that shouldn’t be subject to state referendum”. McCain: “I think decisions should rest in the hands of the states. I’m a federalist”. Sorry, but neither position qualifies as pro-life. It is a debate about which level of government has the right to strip legal protection from the unborn child…

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17 Responses to Federalist vs. Pro-Life

  • He’s also quite stupid, given that he’s had it explained to him on more than one occasion that American pro-lifers see the overturning of Roe not as the end game, but as the first and necessary step — sine qua non of making any further progress.

  • The argument here might have more merit if McCain opposed making abortion illegal at the state level. He does not. It’s not even the case that he’s indifferent on the matter. When South Dakota had a referendum on whether to ban abortion a couple of years ago, McCain supported the ban, and he’s on record as saying that states should ban abortion once the issue was back in their hands (some states, of course, wouldn’t have to ban abortion if Roe were overturned, as their anti-abortion statutes are still on the books).

  • Nah, I shouldn’t say that . . . MM isn’t stupid. He seems to be perfectly intelligent. It’s just that everything he says about politics is driven by one overriding goal: to defend Democrats. Thus, on the abortion issue, he’s very good at making the case that Democrats are better than they are and that Republicans are worse than they are. He can then pretend that both parties are roughly equivalent.

  • MM is highly intelligent in my opinion judging from his postings. However his attempt to equate McCain’s return it to the states policy on abortion with Obama’s abortion now, abortion forever enshrining of Roe in federal statutory law per the Freedom of Choice Act is ridiculous. Overturning Roe will simply do exactly what McCain wishes to accomplish: leave the abortion issue up to the people of each state through their elected representatives. If MM wishes to push for a federal Human Life Amendment to the Constitution I will give him every assistance that I can, but judging from his support of Senator Obama, the most ardent pro-abortionist to ever run on a major party ticket for the White House, I doubt if pushing for such an amendment is high on MM’s list of priorities.

  • S.B.,

    Your comments are greatly appreciated, though please refrain from such language. We want to be an open forum for constructive dialogue.

    I agree with what your comments say, but I disagree with the tone.

    In Jesus, Mary, & Joseph,


  • I’m not really thrilled by the appeal to federalism as a cornerstone the pro-life movement, but I understand it as a strategic political choice. Similarly, I’m not really thrilled by the fact that much of the dissenting opinion on abortion jurisprudence from the SCOTUS is based on strict constructionist objections to the “right of privacy” rather than an appeal to natural law. I guess we have to make do with what we have for now, and try to make the case that there is something universal at stake here.

  • Great rejoinder. I especially like this:

    “Now some Catholics (and perhaps MM falls in this category) are not at root comfortable with the moral implications of a democratic form of government. “Error has no rights” as the old saying goes — and perhaps MM feels it is a grave moral compromise to allow abortion laws to be settled on a democratic basis. Perhaps he would prefer to imagine a world in which a court or autocrat could simply impose a complete abortion ban without all this messing about with debate and voting and compromise.”

    I have perceived a very authoritarian streak in many of the arguments offered at Vox Nova. What I have yet to see is any of them consider the historical and social fact of pluralism in their politics. This, I think, is a glaring omission.

  • J. Christian & Zach,

    It does strike me that one is legitimate in being a bit uneasy about federalism and liberal democracy when applied to moral issues. There’s a dangerous modern tendency to equate majority consensus with moral rightness: “The majority wants this, therefore it must be the right thing to do.” Clearly, this is not the case. The majority can very well be wrong, and one can point to tragic examples of this going right back to Athens.

    However, I think that we as Catholics should (especially in the modern world) recognize that liberal democracy can be as much a protection from immoral rule as a tool for it.

    One can make arguments back and forth as to whether one should impose good laws without the consent of the ruled if one had the ability to do so — but the fact we have to face in the modern world is that most people do not agree with the Church as to what is “good” and so we can either appeal to a fantasy oligarchy in which all the right laws would be enacted by fiat, or we may throw ourselves behind liberal democracy as the best way of at least getting the government most of them ask for, if not actually the one they ought to have.

  • Darwin: I will respond I get a bit of time. But on that last point, democracy is a means to an end, not an end in itself.

  • “Mornining’s Minion” is the first reference to the falcon in Gerald Manley Hopkins’ classic poem, ‘The Windhover.’

  • MM,

    I do agree with you that democracy is a means, not an end unto itself. (In fact, I think that’s pretty much what I said in my comment directly above yours.) However, it seems to me that it is the only realistically available means in this case. And since in any readily imaginable modern US those “in charge” are unlikely to fully share our worldview, we would be wise to remain strict adherants to liberal democratic principles (rather than oligarchic ones) so that our moral, cultural and civic views can have _some_ voice at the table, instead of none.

    That said, clearly I would not be advocating federalism on the issue if there had been a Supreme Court decision ruling that abortion was invariably illegal — just as I don’t advocate an overturn of Brown vs. Board of Education even though it seems to me that was another example of judicial isogesis in place of exegesis.

  • Darwin,

    I would take your starting point about the limits of constitutional democracy, and push it in another direction. It is my firm belief that if Roe is overturned using current tactics (and it could easily be), the states will codify the same rights– at least the largest, most populous states, that account for the vast majority of abortion. Sure, some states will not and some that do will introduce European-style restrictions. This is certainly better than the current condition. And yet it is a most imperfect outcome. But it is by far the best that can be done under the current strategy, and it will come with great cost (those “pro-life” justices have a habit of ruling rather poorly on other areas).

    I would argue that Catholics must address the culture, by affirming the consistent ethic of life. I know from personal experience that the advocates of “abortion rights” detest those who oppose abortion from the narrow Republican angle (which they deem hypocritical), and yet remain more open to the consistent ethic of life argument, which frames the abortion issue not as part of the useless “culture war” but as part of a “culture of life”, based on the ultimate dignity of the human person. Christians can persuade only by example. I find the current strategy completely self-defeating, which is waht frustrates me. Look, support for the death penalty has gone down in recent years. Part of it is lower crime, but part of it is the influence of Pope John Paul and the US Catholics that followed his lead. Unlike gay marriage, which I really think is a lost cause, the younger generation remains quite squemish about abortion. They can be influenced. They will not the influenced by the outmoded take-no-prisoners culture-war rhetoric.

  • FOCA goes well beyond “codifying Roe” — as bad as that would be, FOCA is MUCH worse. The USCCB has an action page about in on their site:

    McCain wants to overturn Roe and make it possible to end abortion state by state.

    Obama wants to pass FOCA and make it impossible to end abortion. He wants abortion to become a taxpayer-funded unlimited “right”.

    Those don’t sound at all the same to me.

    On what exactly have those pro-life justices ruled badly? Are they prudential issues or intrinsic evils?

  • In looking at any particular issue, there is the pragmatic view and the theoretical view. (I’m very well acquainted with these, because as a mathematician and theoretical computer scientist, I’m very much on the theoretical, and as an engineer, my wife is very pragmatic.)

    We have, as Catholics, the following:I cannot support any candidate that is not pro-life because the life issue is fundamentally the most important. Neither viable candidate is 100% pro-life. Therefore, I have a dilemma. Who should I vote for?

    There are two options, really: either cast a vote for a non-viable candidate (or throw it away completely), or pick the lesser of the two evils.

    The theorist affirms that anything less than 100% pro-life is not really pro-life. If you can make excuses in some places (such as embryonic stem cell research), you’ve missed the point, and we can’t trust you on any other issue. To pick the lesser of the two evils then is to discard the life issue altogether and look at other hot topics.

    The pragmatist, hopefully, also recognizes that anything less than 100% pro-life is leaving a candidate wide open to error, but he says that there is a gradation. Someone who only supports ESCR is a lesser evil than someone who supports ESCR and abortion. Thus it makes sense to keep the life issue number one, especially when there are wide differences of error between the candidates.

    The thing to note is that either viewpoint–the theorist or the pragmatist–runs the risk of scandal. The theorist risks scandal because by calling a tie on the life issue and looking at others, he gives the impression that the life issues are not as important. The pragmatist runs the risk of scandal because he gives the impression of hypocrisy by claim that life is the most important issue and then not voting for a candidate that is 100% pro-life.

    In truth, I start to feel that Mark Shea is right in voting third party. Does the need to keep Obama out of office outweigh the need to have a clear, consistent message that life is the most important issue there is? (Of course, I say this with the sinking feeling that Obama’s election is pretty much inevitable. Ask me if I still say this if Obama faces a crushing October surprise…)

  • MM,

    Thank you for the courteous and substantive response.

    There are, however, several areas in which I think it’s important to highlight some disagreement with what you say.

    You observe that if Roe is overturned in the near future, that many states would move to allow abortion to a great extent, and while you say this would be better than the status quo, you say it would be an imperfect outcome. However, I’m unclear why we must avoid this “imperfect outcome” in the short term by preserving the far more imperfect status quo. That the federalist solution would be less that perfect is something I would not question — but it would allow our republic to begin sorting the issue out and experiencing what different restrictions are like in different parts of the country. I think that for the first few months people would be very, very unhappy about this in the pro-choice camp, and even in the “middle” but as time passed we would be able to move into a phase where people argued nearly sanely in the public square about these issues.

    You say that pro-life constructionalist justices tend to rule poorly in other areas — I’m certainly aware this is your opinion, since you are very progressive in your politics and strict constructionalists are unlikely to legislate progressively from the bench. There are, of course, a number of very disturbing trends among the liberal justices ranging from their rulings on eminant domain to “separation” of church and state to restrictions on the free speech to moral issues like gay marriage and euthenasia. While there are areas I might quibble with the results of a strict constructionalist approach to the constitution, the great advantage is that such justices rule on what the constition _says_ not what they wish it said. And so, if we wish our laws to be different, we can change them. According to the more extreme “living constitution” theories, it really doesn’t matter _what_ our laws say, because the justices will rule on what they _ought_ to say instead.

    Now I absolutely agree with you that the primary area in which change on abortion can and must take place is cultural — however I fail to see how this is some sort of either/or question. Shocking as it may seem to one of your persuasion, even many of us who vote conservatively have many friends who think differently and to whom we talk about these issues when possible — not to mention the quiet witness of a life lived in keeping with Catholic principles. But we can’t silo our live from our principles when it comes to the public square. To insist that the right to life _ought_ to be protected while insistantly voting for incredibly pro-abortion candidates woudl be like insisting one wanted racial justice but only voting for rabid segregationalists.

    I commend you for holding back from the excesses of the “culture war” mentality. I don’t think we need more people screaming “baby killer!!!” at their opponent any more than we need more people wearing “Abort Bush!” t-shirts. But you’ve chosen not merely to silently pull the lever for a pro-abortion extremist, but to publicly endorse him on a Catholic blog and to post constantly in his support. I think that’s highly misguided.

  • I would argue that Catholics must address the culture, by affirming the consistent ethic of life.

    This is just the usual false dichotomy. There is absolutely no reason that trying to overturn Roe is inconsistent with also working to “address the culture.” And by the same token, there is absolutely no justification for claiming that you are going to “address the culture,” and then joining sides with politicians who are dedicated to affirming the choice of abortion.

    I know from personal experience that the advocates of “abortion rights” detest those who oppose abortion from the narrow Republican angle (which they deem hypocritical), and yet remain more open to the consistent ethic of life argument, which frames the abortion issue not as part of the useless “culture war” but as part of a “culture of life”, based on the ultimate dignity of the human person.

    Pro-choicers might accept your eager political support when you announce that you are liberal on most other issues and don’t really care about the legality of abortion, but that does not mean that they have themselves become more open to opposition to abortion.

  • And again, it’s right that letting states decide is an “imperfect outcome.” But you completely fail — even after having been reminded of this fact — to recognize that overturning Roe is just a first (and necessary) step, and that by addressing the “culture” at the same time, the larger states would hopefully change over time.

    In any event, it’s a bizarre non sequitur to claim that because it would be “imperfect” to reach a situation in which some states (but not all) restricted abortion, therefore one is going to vote to preserve abortion everywhere and at all times.