The Long View 2007-04-20: Gonzales, Bering Tunnel, Mass Murder Today


John J. Reilly’s idea that managing demographics is a pre-constitutional power of government is one my favorites.

Gonzales, Bering Tunnel, Mass Murder Today

Regarding Gonzales v. Carhart, the United States Supreme Court decision upholding the federal law banning partial-birth abortion, the first thing to note is that the law itself was the least that the late Republican congressional majority could do for its pro-life constituents. I mean "least" in the sense that Ambrose Bierce implied in this insufficiently well known rhyme: "If there were less you could have done, that's what you would have done, my son." The law was supposed to symbolize the Republican establishment's engagement with pro-life issues without in any way undermining Roe v. Wade and the related decisions. The fact that the law was upheld may actually remove abortion as an issue for this electoral cycle: the Democrats would be foolish to promise to repeal a widely popular statute that actually does nearly nothing, and the Republicans can claim a symbolic success that will satisfy their electorate.

In the decision itself, there were really just two important points, neither of which was in the majority opinion. One was made in Justice Ginsburg's dissent:

[T]he Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices.

When the court does not like some public policy, it applies "strict scrutiny" to any law that seeks to enact it, which essentially means second-guessing the legislature (including Congress) that enacted the statute. When the court puts a policy in the strict-scrutiny category, that means that it is, in effect, constitutionally proscribed. Other statutes are subjected to a "rational basis" test, which means that if the legislature goes through the motions of explaining itself and makes legislative findings, however implausible, to support the need for the law, the court will not interfere. In the 20th century up until the second term of Franklin Roosevelt, the court applied strict scrutiny to most economic regulation with a social welfare dimension. They realized they would be impeached or worse if they kept that up, so they moved that sort of statute to the "rational basis" category. Similarly, for most of American history, the court was willing to accept any reason or unreason that the states gave for laws that had the effect of segregating their populations by race. Then, in the 1950s, such laws began to meet with strict scrutiny. This practice of categorization is neither good nor bad; it just is not obviously law in any meaningful sense.

So, except as a study of rhetoric, there is no point in parsing at length what Justice Kennedy's majority opinion had to say about why the statute in question is constitutional while the substantially identical laws that the court has struck down in the past were not. We are told that this law defines partial-birth abortion more precisely, and that Congress made findings that this procedure was never necessary. Therefore, according to the opinion, the court's rule that such laws must provide an exception "for the health of the mother" did not apply. Actually, that was just another way of saying that the matter had been moved out of the "strict scrutiny" category; "health," in the sense that the Supreme Court had been accustomed to use it in this area, was an infinitely expandable concept, one that everyone understood meant that the court would never allow any abortion restriction at all to stand.

This is a degenerate and, frankly, disgusting mode of jurisprudence, even if you like the result. It runs right through all the autonomy-reproductive-sexual-orientation cases, from Griswold to Roe to Casey to Lawrence. In Gonzales, the only difference is that the result runs the other way.

The other interesting point was in Justice Thomas's concurrence:

I also note that whether the Act constitutes a permissible exercise of Congress's power under the Commerce Clause is not before the Court.

He has a point. Roe v. Wade said that legislatures might restrict abortions in the second trimester or even ban them in the third. The right to an abortion, such as it is, could be said to be the right of the woman, a legal person under the 14th Amendment, whose Due Process rights could be protected by statute. But by what constitutional warrant does the state enact a statute to protect a fetus, a legal nullity?

As I have suggested before, the chief misconception underlying this whole area of law is that it is a civil-liberties matter. In fact, what the court (and the elected branches of government, too) have been doing since Griswold is managing demographics, something government has always done, though historically public policy has sought to promote fertility rather than to restrict it. It would greatly simplify matters is the court would recognize that the statutes dealing with these matters are exercises of a pre-constitutional power of government, a power that any government must have simply by the fact of being a government.

* * *

Here's an obvious notion that is not self-evidently a good idea:

April 18 (Bloomberg) -- Russia plans to build the world's longest tunnel, a transport and pipeline link under the Bering Strait to Alaska, as part of a $65 billion project to supply the U.S. with oil, natural gas and electricity from Siberia...

A 6,000-kilometer (3,700-mile) transport corridor from Siberia into the U.S. will feed into the tunnel, which at 64 miles will be more than twice as long as the underwater section of the Channel Tunnel between the U.K. and France, according to the plan. The tunnel would run in three sections to link the two islands in the Bering Strait between Russia and the U.S...

``It's cheaper to transport electricity east, and with our unique tidal resources, the potential is real,'' [Vasily Zubakin, deputy chief executive officer of OAO Hydro OGK] said. Hydro OGK plans by 2020 to build the Tugurskaya and Pendzhinskaya tidal plants, each with capacity of as much as 10 gigawatts, in the Okhotsk Sea, close to Sakhalin Island.

The project envisions building high-voltage power lines with capacity of up to 15 gigawatts to supply the new rail links and also export to northern America.

I like the idea of being able to take a train from New York to Paris, but we must wonder about the utility of linking one resource-rich wilderness to another. You would have to carry the stuff that travels through those tunnels an awfully long way before you would find someone with a use for it.

* * *

Mark Steyn's thoughts about the Virginia Tech Massacre mischaracterize the event:

On Monday night, Geraldo was all over Fox News saying we have to accept that, in this horrible world we live in, our “children” need to be “protected.”...

Point one: They’re not “children.” The students at Virginia Tech were grown women and — if you’ll forgive the expression — men. They would be regarded as adults by any other society in the history of our planet. Granted, we live in a selectively infantilized culture where twentysomethings are “children” if they’re serving in the Third Infantry Division in Ramadi but grown-ups making rational choices if they drop to the broadloom in President Clinton’s Oval Office. Nonetheless, it’s deeply damaging to portray fit, fully formed adults as children who need to be protected. We should be raising them to understand that there will be moments in life when you need to protect yourself — and, in a “horrible” world, there may come moments when you have to choose between protecting yourself or others.

Professor Liviu Librescu, who died protecting his classroom from the shooter, will rightly be remembered as the hero of the incident, but he was not the only person who responded quickly and intelligently to the attack. In other classroons, the students succeeded in barricading their doors. Some students, pinned to the floor by gunfire, prevented others from panicking and so calling attention to themselves. The victims were not a population infantalized by the nanny-state.

No more helpful was Steyn's libertarian reflex of blaming the local police for failing to publicize across the campus the murder of two students earlier in the morning. The idea was that the students could have decided for themselves what security measures to take. Does anyone refrain from going out in public because a murder has been committed a quarter-mile away? To propose more "choice" as the solution is fatuous.

Objectively speaking (and speaking as someone whose one encounter with gunfire many years ago was to run away as fast as possible), the most life-saving solution would have been for a dozens students to have rushed the shooter and overwhelm him. Several might have been killed, but the casualty rate would not then have reached double digits. Okay, but that's the kind of collective, disinterested action that libertarianism makes almost unimaginable.

* * *

Peggy Noonan's assessment is understandable, but, I think anachronistic:

When Columbine happened, it was weird and terrible, and now there have been some incidents since, and now it's not weird anymore. And that is what's so terrible. It's the difference between "That doesn't happen!" and "That happens."...In terms of school shootings, we are now familiar with the principle...

With all the therapy in our great therapized nation, with all our devotion to emotions and feelings, one senses we are becoming a colder culture, and a colder country. We purport to be compassionate--we must respect Mr. Cho's privacy rights and personal autonomy--but of course it is cold not to have protected others from him. It is cold not to have protected him from himself.

Since the Columbine shootings, suicidal mass murder has become common. There are pictures of it every day from Iraq. When it happens in Israel, it's usually by a student. Therapy does not have a nickel's worth to do with it.

Copyright © 2007 by John J. Reilly

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