Alito: Happy Now?

My reader (oh yes! how I love my tiny group of readers!) Grace asked, by way of a comment she was kind enough to leave on the previous post, whether I was made happy by Dear Leader's recent substitution of one S. Alito for one H. Miers, as a candidate backup vocalist on The Supremes. And while I'm sure Grace -- may she live forever, and may you immediately go and read her excellent blogs, Scriptoids and The Next Blog Blog -- did not mean it as such, her question actually represents two temptations. One is the temptation to inflict yet another blog post on the world, and that's a temptation to which I instantly surrendered in my inimitable, round-heeled fashion. The other I will resist: that's the temptation to a results-oriented utilitarianism. And, although no one has asked me to, I will explain myself.

The "conservative" part of the Republican Party is officially upset about legal abortion, along with a variety of other court decisions. But, for purposes of discussion, we can usefully sum up the conservative Republican dissatisfaction with high-level federal jurisprudence in one word: Roe. I stress the "official" nature of conservative Republican opposition to Roe, because -- as I have suggested here before -- a perpetual source of red-meat political pornography by which its base can be powerfully motivated is quite useful to the Republican Party, especially when the babies-who-aren't-around are disproportionately black. But, taking them at their not-especially-reliable word, the Republican right doesn't like Roe.

But their strategy for getting rid of Roe has been an unprincipled one; rather than address the structural problem of the judicial branch of government making a half-hearted pretense of finding "emanations from penumbras" that allegedly say things that the plain text of the constitution obviously does not say -- such as a prohibition on the several states from legislating against abortion -- they propose to leave a structural tyranny in place, but to man that structure with the "right" people. Various Republican presidents have been elected to do that since 1980, with the result that we've seen: practically all the Supremes put there by presidents who made the "strict constructionist" noises, and Roe still in effect, with zero apparent probability of overturn. I can think of a couple of explanations for this -- and both are attractive. We could assume that the Republicans are well-meaning dunces, unable to accomplish a task that they have sincerely tried to do: the Stupid Party theory. Or, we could conclude that the Republicans, who have proven adept enough at doing what they actually want to do, such as Mexicanizing the American economy to the great advantage of corporate management, are simply content that Roe should remain "the law of the land." I tend to favor the latter theory, in spite of its overtones of tinfoil headgear. Neither explanation, however, should inspire pro-life Americans to vote for the elephants. Been there, done that, didn't work worth a damn.

If Roe were overturned tomorrow, with the result that the question of legal abortion simply returned to the states, where it belongs, I wouldn't be especially thrilled. That would, I think, have made a real difference in 1974 or so, when people could actually remember from their own experience that the pre-1973 alleys did not, in fact, run red with blood, and that one could easily walk down the street without tripping over discarded straightened-out coat hangers. I was there; I know. But, in 2005, that memory is largely gone. I'd be extremely surprised if a single state, post-Roe, actually restored the pre-1973 status quo. So, it's difficult for me to get excited about whatever happens with the Supremes, other than to hope for an outrage so great that it starts a revolution: something like Kelo, but on steroids. The responsible part of me (and yes, I do have one) says, sure, if the Supremes were nine copies of Scalia, there'd probably be somewhat less mischief, and that would probably be good. No thrills, though ... far from it.

Besides, I don't have a solution for the truly basic problem -- more basic than the problem of a lawless judiciary, for which the Congress actually has existing constitutional remedies. The more fundamental problem is that of a central government whose powers are supposedly limited by a document, a constitution, when that same central government gets to say what that document means. That's an open-loop system: the central government is assigned the control of itself. And, even though we like to indulge ourselves with mythology about there having been a post-Revolution golden age of liberty, which gradually devolved into bureaucratic tyranny, an honest reading of U.S. history suggests that the devolution was actually quite abrupt. We had an anti-sedition law before 1800. The tyranny was certainly complete by the middle of the 19th century, when Lincoln explained in rivers of blood that the United State was essentially a prison, or the Hotel California: a place that a state could never leave. Short of an even larger river of blood, I don't see a solution.