Monday, January 27, 2003

....And while I'm in dead-horse-flogging mode, Jack Balkin, whose racial preferences sophistry I just finished dissecting, has now published a New York Times op-ed on Roe v. Wade. (He also expands on these ideas in a blog posting.) After noting the rather obvious fact that Roe has served Republicans well as a rallying point for "pro-life" conservatives, Balkin proceeds to claim that the decision was in fact "good for the country as a whole and for the democratic process" (my emphasis). "By taking certain issues off the table in religious-based controversies," he writes, "the courts enable political parties to organize around bread-and-butter issues like the economy and national defense." Moreover, he asserts, Roe "functions as a lightning rod, drawing political heat away from the democratic process and onto the Supreme Court itself."

Now, a naive reader, unblessed with Balkin's superlative perspicacity, might have failed to notice this supposed "lightning rod" effect. After all, literally dozens of countries have dealt with the abortion issue through the normal democratic process; they range from Ireland, which only very recently lifted an outright ban on the practice, all the way to the very liberal France, which pioneered the widespread use of the "abortion pill" RU-486. And to the best of my knowledge, in only one country in the world has the abortion debate become so acrimonious as to spawn a real, live terrorist movement responsible for multiple murders--and oddly enough, it's also the one country where the the abortion issue was taken "off the table" by judicial fiat. It's a strange lightning rod, indeed, that increases the number of victims of the violent fury it's supposed to divert harmlessly.

But it seems pointless to quibble with this specific case when Balkin's general argument is that by abrogating majority rule and imposing arbitrary diktats regarding major political issues (and he openly concedes that they are political), the Supreme Court can actually make democracy function better. The sheer Orwellian audacity of the claim is just breathtaking. I don't know whether it's more frightening to think of him as merely engaging in lawyerly casuistry, or to contemplate the possibility that his "less is more" approach to democracy is perfectly sincere.

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