February 10, 2007

Has Rudy Giuliani gotten incoherent about abortion?

Here's a NYT piece about how Rudy Giuliani is reframing his stance on abortion to appeal to conservatives. It contains a quote that I found puzzling:
“On the federal judiciary I would want judges who are strict constructionists because I am,” he said last week in South Carolina. “I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret, not invent, the Constitution.

“Otherwise you end up, when judges invent the Constitution, with your liberties being hurt. Because legislatures get to make those decisions and the Legislature in South Carolina might make that decision one way and the Legislature in California a different one.”
How is "strict construction" supposed to protect liberty, and why would it help to have legislatures in different states making different decisions about "your liberty"? The NYT article leaves us hanging -- Rudy seems incoherent -- and moves on to what he said to Sean Hannity the other day about "partial-birth" abortion and parental notification laws.

This seems to be the full context of Giuliani's statement. It adds one more sentence that made me get his point, which in fact makes sense:
"On the Federal judiciary I would want judges who are strict constructionists because I am. I'm a lawyer. I've argued cases in the Supreme Court. I've argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that's part of our freedom and when that's taken away from you that's terrible."
The meaning is none too obvious, so I'm not criticizing the NYT for dropping that last line, but it was enough to tip me off that he was talking about federalism (a subject I teach and write about).

I'm not surprised that Giuliani didn't launch into a discourse on federalism in front of a crowd of non-lawyers. But there is a constitutional law point is embedded in these few words. The idea is that constraining the scope of federal constitutional rights leaves more room for legislatures to regulate in ways that suit the preferences of the people in the difference states, and this power to make different law in different places is an aspect of freedom. The people in South Carolina might like things one way and -- look at the other state he chose to name -- the people of California might like something else.

Why is federalism an aspect of freedom? Here's a good passage written by Justice O'Connor that ties federalism to the protection of freedom (from Gregory v. Ashcroft, 501 U.S. 452 (1991)(citations omitted)):
Perhaps the principal benefit of the federalist system is a check on abuses of government power. "The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties.'" Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would suppress completely "the attempts of the government to establish a tyranny":

"[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress." The Federalist No. 28, pp. 180-181 (A. Hamilton).

James Madison made much the same point:

"In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, p. 323 (J. Madison).

One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this "double security" is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.
So Giuliani was referring -- I think -- to the idea that the preservation of the legislative autonomy of the states is an important constitutional structural safeguard that works to protect individuals. We tend to be so used to the idea that courts protect freedom by enforcing individual rights that we forget to think about how the original Constitution embodies a belief in protecting the people from the abuse of power by dividing it up.

Of course, you're entitled to be suspicious about whether federalism protects freedom. O'Connor expressed the skepticism that the history of states rights in the United States demands:
One fairly can dispute whether our federalist system has been quite as successful in checking government in checking government abuse as Hamilton promised....
By failing to explore the idea that Giuliani was talking about federalism, the NYT deprived readers of an opportunity to understand the coherence of his remark, but it also spared him a criticism. There he was in South Carolina letting people know -- if they could pick it up -- that he cared about states' rights.

The Times article, as noted, moves on to the subject of what Giuliani said about "partial-birth" abortion:
[H]e told Mr. Hannity that a ban signed into law by President Bush in 2003, which the Supreme Court is reviewing, should be upheld....

[But when a]sked by Tim Russert on “Meet the Press” in 2000 if he supported President Bill Clinton’s veto of a law that would have banned the disputed abortion procedure, Mr. Giuliani said, “I would vote to preserve the option for women.” He added, “I think the better thing for America to do is to leave that choice to the woman, because it affects her probably more than anyone else.”
Is this a contradiction? No. To say that the Court should uphold a statute is to say that it is not a violation of constitutional law. The question from "Meet the Press" is about whether, as the executive with the veto power, he would sign the law. One could think a law should not be passed -- because you want "to preserve the option for women" -- without also thinking that the law would be unconstitutional. The language "the option for women" itself suggests that he was talking about what is good policy rather than the scope of rights that courts need to enforce.

If you look at the transcript of the Hannity show, you can see this:
HANNITY: There's a misconception that you supported partial-birth abortion.

GIULIANI: Yes, well, if it doesn't have a provision for the life of the mother, then I wouldn't support the legislation. If it has provision for the life of the mother, then I would support it.
Is that inconsistent with what he said in 2000 about Clinton's veto? The bill that President Clinton vetoed did contain exception for the life of the mother: It did not apply to "a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury: Provided, That no other medical procedure would suffice for that purpose."

There's room to wriggle out of the contradiction by saying that is not a proper "life" exception, and I would cut Giuliani some slack for not going into the details on the Hannity show. What "other medical procedures" would women be forced to endure to save their own lives? Would you require a woman with a life-threatening medical condition to have a Caesarean section -- as long as she could survive it -- in order to remove a fetus that was only going to die in the womb?

The NYT article also points to a seeming contradiction about parental notification laws. Here's what Giuliani said on Hannity (from the transcript) in response to the two word question "Parental notification?":
Parental notification, I think you have to have a judicial bypass. If you do, you can have parental notification. And I think the court -- I mean, that's the kind of thing I think the court will do with abortion.
And here's the NYT:
[O]n a 1997 candidate questionnaire from the National Abortion and Reproductive Rights Action League of New York, which Mr. Giuliani completed and signed, he marked “yes” to the question: Would you oppose legislation “requiring a minor to obtain permission from a parent or from a court before obtaining an abortion.”
This is definitely not a contradiction. On Hannity, Giuliani was clearly talking about how constitutional law should be interpreted. On the 1997 questionnaire, he was clearly talking about how he would exercise his role in the legislative process.

Now, you can say, but he's running for President now, and he'll have the veto power, so what matters is how he handles federal legislation. If he would veto anti-abortion bills, shouldn't pro-lifers reject him? I think you need to see how Giuliani's various statements point to the federalism solution. Let the law vary from state to state, reflecting the different preferences of decentralized majorities at the state level. This solution depends not only on the Supreme Court's interpreting rights narrowly enough to leave room for state regulation, but also on the absence of federal legislation that would preempt state law.

If your conservatism extends to federalism, you should see why Giuliani's seemingly complicated position is perfectly coherent.

UPDATE: Andrew Sullivan agrees with me about Rudy and goes on to say that he has long favored the federalist solution to the abortion controversy. Read his whole post, but let me highlight some of it:
The South is a very conservative place. Forcing them to move more quickly on issues of basic human dignity has historically led to even worse spasms of hatred...

It seems to me that if the conservative coalition is not going to fracture completely, then federalism is its only option. That way, centrists like McCain, Romney and Giuliani can actually become Republican presidents.... Opting to use federalism as the mechanism to allow the social conservatives to support him on other issues like national security and a more competent government, while personally supporting women's freedom and gay dignity, is extremely smart politics.

I think Rudy is the best and most viable candidate the Republicans now have....
Let me flag two posts of mine from last fall about abortion and federalism: this one (responding to a lecture from Harvard lawprof Richard Fallon) and this one (reprinting an op-ed I wrote in the Wall Street Journal).

Glenn Reynolds also links and writes:
First, Ann refers to federalism's role (under the inaccurate moniker of "states' rights") as a shibboleth for anti-desegregation forces.
I agree that "states' rights" is a misnomer and use it here only to refer to the historical rhetoric. I used to think only people who didn't like federalism would use the term "states' rights" other than to call to mind the bad old days of slavery and segregation, but I was surprised back in 2000, when I participated in the (now famous) "Constitution in Exile" conference at Duke Law School, that lawprofs Lynn Baker and Ernie Young used the term "states rights" in a positive way in their article "Federalism and the Double Standard of Judicial Review." I was one of the commenters on their article -- my piece is "Why Talking About 'States' Rights' Cannot Avoid the Need for Normative Federalism Analysis" -- and I wrote:
Baker and Young boldly employ the inflammatory term "states' rights." Before reading their wonderfully assertive new article, I had thought the term states' rights survived only in the vocabulary of opponents of the Supreme Court's recent efforts on behalf of the states. "Federalism," I would have thought, is the term of choice for supporters of the Court's current jurisprudence. The term federalism conjures up more functional and pragmatic ideas about the role of the states....

But Baker and Young openly, eagerly embrace not just federalism but "states' rights." Their use of the term "rights" is not accidental. The way they would treat states corresponds to the way American law treats individual human beings when it is said that they have rights. The law protects individual freedom of speech even though that freedom will be used by persons who have hateful, ugly, or disturbing things to say; the law, however, may justify this individual autonomy on the theory that, over time, good will emerge from the marketplace of ideas. By the same token, Baker and Young are willing to take the risk that some states might do bad things with their freedom. They want protection of state autonomy and rely on a belief that in the long run what the states do with their independence will accrue to the good. Just as some First Amendment libertarians advocate a marketplace of ideas, Baker and Young might be said to advocate a marketplace of states, offering Americans a choice of fifty different cultures....

This argument for diversity -- at least in cases in which uniformity is not necessary -- is a strong one, yet its appeal inevitably will vary depending on how one answers the normative question. As long as Americans fear that states will do too much harm and too little good if left to their own devices, they are likely to prefer not states' rights, but, at most, a flexible, pragmatic federalism.
(I hope regular readers of this blog see the resonance between what I was saying there and the dispute I had with the libertarians recently -- here, here, and here.)

Anyway, you should read the rest of Glenn's post. And Baker and Young's article is really good. More on the "Constitution in Exile" notion here and here.

21 comments:

Bruce Hayden said...

Giuliani's problem may ultimately be that he is too subtle and thus it is too easy for someone, like the NYT to "innocently" misquote him to ill effect.

As you noted, some of the theories here are not that simple and easy to articulate and understand. So, while a law professor, and with her help, the rest of us, can understand what Rudy is saying, it is too easy to twist.

The Drill SGT said...

Beyond the obvious Federalism argument that you make so well in your post, Rudy is also stressing the Activism argument. Laws are better made by elected officials than by appointed judges. That resonates well with the GOP base and conservative Dems as well.

TMink said...

Thanks! For non-legal types like me that was an interesting and helpful piece of expository prose.

True Federalism would lead to some interesting situations though. I live in Tennessee, and living in a conservative enough state would have some advantages. But, I would support civil unions for gay and lesbian couples, something that would likely not get through the voters and legislature here. What would it be like for liberals or conservatives in a state that does not "fit?"

And which state would first legalize marijuana? And who would move to that state? Would the potheads move in, or the marijuana users that take care of business have the energy and follow through to do so? What would it be like for a state to have an influx of two male income earning couples? Would their be gay states and lesbian states, or both?

And would a stronger Federalism marginalize the office of President and Congress? That might actually be a good thing.

Trey

David said...

The key words that I focused on was Guliani's statement that judges should not invent the Constitution but interpret it.

The greatness of our country is based on a bedrock of beliefs and not the shifting sands of political opinion.

The Tiger said...

About how originalism can protect liberty and how a living tree approach can threaten it -- perhaps Giuliani had Kelo and cases like it in mind?

(And that medicinal marijuana one... oh, which one was it... the one about California's laws, that had Rehnquist, O'Connor, and Thomas as the dissenters who thought that having the interstate commerce clause make federal drug laws apply to California doctors was ridiculous...)

I thought it was obvious that Giuliani was using federalism as his out. (That's, incidentally, how I can count myself as a Republican.)

gail grimmel said...

Ann, you are assuming things far beyond what he actually said to fit them nicely in a philosophy you think he adheres to.

As a conservative, I could not vote for Guilliani because I believe in the "rule of law." Guilliani obviously has no respect for the "rule of law" when he moves his mistress into his home where his wife is already living without filing for a divorce. Not only is that disrespectful to his family, but it is also disrespectful to the rule of law.

Sadly, there aren't that many "conservative" politicians seeking the 2008 presidency who actually respect the rule of law with their stance on illegal immigration. The law expressly forbids illegal immigration, but our politicians and people in power who sadly can't get enough of the cheap labor continue to apply their own beliefs in interpreting the law.

The rule of law means a lot to us.

http://lashawnbarber.com/archives/2007/01/16/this-christian-isnt-torn-over-illegals/

SteveR said...

Rule of Law:

While I would like to agrre with you Gail, there's a big fight going on and I want a tough SOB running the show. There are a lot of personal indescretions among the '08 crowd, along with political flaws.

I'm going to have to look past a lot of things I may not like to vote for any of them.

As I would hope the Republicans learned with Ross Perot and Democrats with Ralph Nader, idealism can mean 8 years of having to say your sorry.

Tim said...

If Giuliani's campaign does nothing but provoke a long past-due, realistic national discussion of federalism, (as a Giuliani supporter I want his campaign to do much more than that) it will have made an important contribution.

Simon said...

I strung together an argument for why conservatives should normatively prefer federalism in the words of a noted federalism scholar here. ;)

Tiger -
"(And that medicinal marijuana one... oh, which one was it... the one about California's laws, that had Rehnquist, O'Connor, and Thomas as the dissenters who thought that having the interstate commerce clause make federal drug laws apply to California doctors was ridiculous...)"

That was Raich, but not every originalist disagrees with it. Scalia concurred in that case, and has consistently (since before he was even nominated to the bench, in fact, see A. Scalia, Two Faces of Federalism, 6 Harv. J.L. & Pub. Pol'y 19 (1982)) taken the view that the necessary and proper clause has a broad reach when carrying into effect an interstate commerce regulatory scheme to which regulation of intrastate activity is, well, necessary and proper. I have to say that I'm somewhere between Rehnquist and Scalia on this question; although I'd overrule Wickard, at this point, I would probably leave NLRB v. Jones & Laughlin Steel Corp. in place, and would have joined the court in Heart of Atlanta Motel. I don't know what I'd have done in Raich.

Rich V. said...

I've always supported Rudy, I'm just disappointed that he pulled out of the 2000 Senatorial race against Hillary. I think he'd have won.

Simon said...

"We tend to be so used to the idea that courts protect freedom by enforcing individual rights that we forget to think about how the original Constitution embodies a belief in protecting the people from the abuse of power by dividing it up."

It's of some interest to me that you'd make an argument that the Constitution's protections are in significant part structural, which I've previously suggested is the very dividing line betwixt between legal conservatives and legal liberals, a distinction that (I had thought) you agreed with. See comment and citation here.

Simon said...

"If he would veto anti-abortion bills, shouldn't pro-lifers reject him?"

Depends on their view of federalism and the power of Congress to pass anti-abortion laws. I wouldn't just support him regardless of this possibility, I'd actively encourage him to do so in some cases - the law presently at bar in the Supreme Court, for example.

"This solution depends not only on the Supreme Court's interpreting rights narrowly enough to leave room for state regulation, but also on the absence of federal legislation that would preempt state law."

...Or on the Court not only admitting that the Constitution doesn't withold abortion from the democratic arena, but also having a willingness to strike down, for the greater part, federal laws attempting to regulate abortion in the states, which Scalia has indicated that he (very properly) would.

Naked Lunch said...

The people that will hit the fainting couch the hardest if a Democrat wins will be the Wall Street Journal. So few cases even make it to the Supreme Court anyways, the real damage is done at the appeals levels, the court of last resort for most Americans. Protect corporations, and deny ordinary people access to the courts. Republicans want the courts for money -- does anyone truly believe Dick Cheney gives a crap if two gay guys get married?

Mark R. said...

I think Rudy was trying to make the point that protecting freedom through the right to self-govern - i.e., make laws through majority representation in a legislature, is as important as individual freedoms.

For some reason, this fundamental right to self-government doesn't get as much concern these days as the others. But that exactly what the notion of SC legislature making laws different from CA legislature says to me. And while this right is certainly sometimes constrained by other freedoms in the Constitution, it is just as important in the overall structure of our freedoms. And I am glad Rudy is trying to emphasize it.

shake-and-bake said...

Excellent post. Even Sullivan has given a positive link -- is this a first?

Simon said...

Per the update, I agree with Glenn and Dave's article - if Carhart ends up upholding FPBAA, it'll be because the wrong challenge was brought and courts generally try to avoid striking down federal law on grounds raised sua sponte. I've given this a lot of thought over the last few months, and I think the best outcome in that case would be for the court to decide the challenge raised, overrule Stenberg, but explicitly hold open the question of whether Congress had the authority to enact the statute in the first place. That would satisfy our Fearless Leader's desire for a narrow opinion, n'est ce pas?

proudtobealiberal said...

The question is whether Rudy Giuliani can be fairly described as "pro-choice" or moderate if he would appoint justices like Scalia and Thomas.

Bush was very good at persuading conservative Republicans he was "pro-life" and "anti-gay marriage" while at the same time not scaring moderates. Guiliani is trying to do the same kind of triangulation.

The "strict constructionist" language is a code for appointing justices who would overrule Roe v. Wade. The question then is whether Congress would embark upon federal legislation to oppose abortion.

Giuliani is now saying that his view of pro-choice is that he would not make women who have abortions criminals. That is the same line as the right-to-life movement which would make doctors criminals but not penalize women criminally for getting abortions.

If abortion is murder, then the woman who procures the abortion is equally as guilty as the doctor who performs the abortion. Why shouldn't she go to jail if the doctor does?

Ask Giuliani if the doctors should be sent to jail for performing abortions, and if so, why should not the women get the same penalty.

TMink said...

Proudtbl wrote: "The "strict constructionist" language is a code for appointing justices who would overrule Roe v. Wade. The question then is whether Congress would embark upon federal legislation to oppose abortion."

Is it that, or is it a code word for justices who think legislatures should make the laws? I agree that is is up to Congress. But then, I think that is who it should have been up to all along.

Trey

proudtobealiberal said...

The issue is whether Rudy is actually pro-choice. If Congress passed a law banning abortion except for rape and incest (and life of the mother), would he sign it or veto it?

If he would sign it, he is not pro-choice. If he would veto it, he is not pro-life.

He should not be allowed to wriggle away from answering the question.

Simon said...

"The question then is whether Congress would embark upon federal legislation to oppose abortion."

If it did, such an act should be subject to an as-applied challengee and struck down by the Supreme Court as ultra vires as it would have applied to the states.

"The issue is whether Rudy is actually pro-choice. If Congress passed a law banning abortion except for rape and incest (and life of the mother), would he sign it or veto it? If he would sign it, he is not pro-choice. If he would veto it, he is not pro-life."

Again, totally wrong. I'm pro-life and I would veto an act of Congress banning abortion. The President has a duty to veto any bill he believes is unconstitutional, regardless of whether or not he agrees with it as a matter of policy.

USpace said...

Rudy is pro-choice, but would appoint conservative Supremes, and feels it is up to the states to decide. Go Rudy Go! He may be the only one who can beat the Pinko PIAPS.

absurd thought -
God of the Universe
hates men in drag

threatened by gay lifestyle
sees procreation ending


if you're MAD
punish America
- VOTE for Hillary
.