April 05, 2006

Two Great Articles From The Weekly Standard

Federalism and Abortion:
In the current issue of the Weekly Standard, David Gelernter has an essay suggesting that a return to federalism may be just what a “bitterly divided” country needs. He is particularly critical of Roe v. Wade and suggests that Congress pass legislation stripping the federal courts of jurisdiction over the abortion issue. Ed Whelan comments on the essay over at Bench Memos. Though he has high praise for Gelernter and agrees with much of the essay, Whelan is concerned
“that such legislation would likely be ineffective or even counterproductive. First, the Supreme Court and the federal courts, eager to enhance their own power, might well rule that Gelernter’s proposed legislation is unconstitutional. What, then, would Congress do? Second, even if the legislation were to apply fully, it’s highly doubtful that the legislation would have the effect of overruling Roe. Instead, it seems far more likely that state judges would (properly, I fear) continue to regard Roe as binding and that the proposed legislation would serve merely to prevent the possibility of the Supreme Court’s ever overturning Roe.”

Foreign Law:
Also in the Weekly Standard, Jeremy Rabkin, who teaches international law at Cornell University, has an excellent article that cuts through the recent controversy about Justice Ginsburg’s remarks in South Africa and addresses the main issue: the Supreme Court's use of foreign legal precedent as authority to justify decisions concerning American constitutional law. Rabkin makes several good arguments in the piece, but one of the more cogent is this one:
“If foreign law, why not religious law? Why not the canon law of the Catholic Church? As it happens, the U.S. Supreme Court has cited ‘canon law’ in more than two dozen cases over the past 200 years. Most of the references are entirely incidental, but a few cases in the early 20th century actually engaged with Church sources, among others, in wrestling with the meaning of ‘due process.’…Suppose that Catholic or conservative justices began to regularly cite canon law on the most controversial constitutional disputes--on such matters as family law or medical ethics. These justices could insist, as Justice Ginsburg does, that such ‘foreign opinions are not authoritative’ and ‘set no binding precedent for the U.S. judge’ but simply ‘add to the store of knowledge.’ In today's world, the protests from liberals would be deafening, because such soothing abstractions would be seen as disingenuous. To treat canon law as any sort of "persuasive authority" would be intensely divisive. The ‘foreign opinion’ that liberals prefer has no more inherent relevance or authority, however. We could save a lot of needless dispute by agreeing in advance that all sides will play by American rules.”

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