October 2, 2008

Ramesh Ponnuru is concerned

Ramesh Ponnuru, who is apparently some sort of "senior editor" at the National Review, is very troubled that Senator Joe Biden referred to the Due Process of Law provision in the 14th Amendment to the U.S. Constitution as "the liberty clause." Horror of horrors.

Ponnuru also claims that Biden "misdescribes" Roe v. Wade.

What Biden described to Katie Couric was the trimester framework of gestation established by Roe, and it wasn't a misdescription at all. More succinctly, Roe v. Wade held (among other things) that the government's interest in a human fetus as opposed to that of its bearer increases along with the course of that fetus's development.

One of the contemporary criticisms of Roe — one that issues from its supporters especially — is that the division of gestation into three equal periods is arbitrary and is furthermore out of step with current medical knowledge (Roe v. Wade is now more than 35 years old).

But Biden's description is accurate and obviously the question of fetal development has played a determinative role in attitudes toward abortion since time out of mind. Roe contains a lengthy review of that history, as do the numerous accounts cited in Roe's footnotes.

As for the "liberty clause," it's simply a common shorthand for one feature of the 14th Amendment's Due Process Clause:
No State shall ... deprive any person of life, liberty, or property, without due process of law[.]
As a matter of fact, it's a shorthand favored by Chief Justice John Roberts, who invoked it during his Senate confirmation hearings in 2005 during questioning by — guess who — Joe Biden:
It is my view that all of the Justices — I think of a case like the Glucksberg case, in which the majority subscribed to the view that there is an appropriate mode of analysis to determine the content of the liberty clause, that it does include protection beyond physical restraint, and that that protection applies in a substantive manner.
I have also explained the sources that judges look to in determining the content of that privacy protected by the liberty clause. They're the ones that have been spelled out in the Court's opinions, the nation's history, traditions, and practices.
They were discussing the Due Process Clause, just not its "life" or "property" components because the constitutional theory underlying Roe v. Wade and many other related decisions of the Court, "substantive due process," derives from that liberty component.

So much for Ramesh Ponnuru, who appears to be unworthy of any concern, although I understand he's taken seriously by a number of political conservatives. The latter fact is probably the real concern.

Now this character claims that "Ramesh Ponnuru is right," and goes on to announce that Joe Biden "doesn’t even seem to be able to explain the doctrine of incorporation properly."

What the ?

Incorporation doctrine — the idea that the 14th Amendment makes the protections contained in the Bill of Rights enforceable against State governments — never even came up.

Even professor of law Ann Althouse is dazed and confused:
Biden: I think the liberty clause of the 14th Amendment ... offers a right to privacy. Now that's one of the big debates that I have with my conservative scholar friends, that they say, you know, unless a right is enumerated — unless it's actually, unless [it] uses the word "privacy" in the Constitution — then no such "constitutional right" exists. Well, I think people have an inherent right.

Althouse: Again, this is blatantly wrong and unchallenged. Some conservatives reject the right to privacy, but Chief Justice John Roberts and Justice Samuel Alito clearly affirmed it in their confirmation hearings in Biden's own committee. Is Biden deliberately lying or is he ignorant?
Where exactly did Senator Biden say that either Justice Roberts or Justice Alito were among his "conservative scholar friends"?

And these are the "famous bloggers." Lord help us.

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