Katie Couric: Why do you think Roe v. Wade was a good decision?Since I noted Palin's garbled syntax, to be fair, I have to flag that garbled syntax.
Joe Biden: Because it's as close to a consensus that can exist in a society as heterogeneous as ours.
What does it say? It says in the first three months that decision should be left to the woman. And the second three months, where Roe v. Wade says, well then the state, the government has a role, along with the women's health, they have a right to have some impact on that. And the third three months they say the weight of the government's input is on the fetus being carried.Questions! Questions! Katie, where are your questions?
And so that's sort of reflected as close as anybody is ever going to get in this heterogeneous, this multicultural society of religious people as to some sort of, not consensus, but as close it gets.
Let me suggest a few: Why is that a consensus? And should the Supreme Court be serving up consensus and calling it constitutional law? If you say the case is good because it is consensus, then why would it not have been preferable to allow the democratic processes to play out and produce consensus? Why should courts impose consensus? And why are you praising the lines drawn in Roe, when the Court redrew the lines in Planned Parenthood v. Casey? "It says in the first three months that decision should be left to the woman"... ahem... that hasn't been the doctrine since 1992!
But Couric doesn't not break in and push Biden with any questions. He has free rein to make unchallenged statements. He is permitted to settle in and get comfortable and to rattle out his ideas in his own good time:
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.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?
Couric: Are there Supreme Court decisions you disagree with?Here, Couric could have interrupted him, as she interrupted Palin, and asked some questions. There are some terribly important questions that are just begging to be asked. Biden has expressed pride in having written a provision in a statute that, in United States v. Morrison, the Supreme Court held was an exercise of power beyond what is granted to Congress in the Constitution.
Biden: You know, I'm the guy who wrote the Violence Against Women Act. And I said that every woman in America, if they are beaten and abused by a man, should be able to take that person to court - meaning you should be able to go to federal court and sue in federal court the man who abused you if you can prove that abuse. But they said, "No, that a woman, there's no federal jurisdiction." And I held, they acknowledged, I held about 1,000 hours of hearings proving that there's an effect in interstate commerce.
Here are some question that could have been asked: Do you think there is any importance to the idea that the Constitution gives Congress limited, enumerated powers? Why isn't it enough that a woman can use state law and sue someone who has physically abused her? Do you think the federal government should pass laws in areas that have been traditionally handled by the states? What standard would you apply to that? Wasn't your law more of a political gesture to please some constituents rather than something that needed to be federalized?
Women who are abused and beaten and beaten are women who are not able to be in the work force. And the Supreme Court said, "Well, there is an impact on commerce, but this is federalizing a private crime and we're not going to allow it." I think the Supreme Court was wrong about that decision."Federalizing a private crime"? Huh? Where are the follow up questions?
The unconstitutional provision in the Violence Against Women Act federalized tort law not criminal law. It did not simply authorize federal prosecutors to file cases. Individual plaintiffs could use the federal courts to sue their attackers. Does Biden have any concern about using the federal courts to try cases involving one individual in an act of violence against another individual? Does he know the ratio of state trial level courts to federal district courts in the United States? Why should scarce federal judicial resources be expended on cases like this (as opposed to more complicated interstate matter)?
A person who suffers physical injuries may lose time in the work force, but why does that fact mean that the case belongs in federal rather than state court? Presumably, Biden would say that there was case law stating that Congress has power under the Commerce Clause to pass laws regulating matters that have a substantial effect on interstate commerce, and Biden assumed that if injured women lose time at work, then Congress had power to put individual tort cases arising from acts of violence into the federal courts. Under this theory of the Commerce Clause, which the Supreme Court limited United States v. Morrison, Congress could justify regulating virtually anything.
Why didn't Couric press him on his expansive view of his own power and disregard for the role of the states? Will he bring similar expansive theories of constitutional power to the executive branch?
Absolute deafening silence from Katie Couric. She gave him a free pass. The viewer is invited to sit back and admire Joe Biden as an impressive authority on constitutional law... not like that ignoramus Sarah Palin. Very few viewers will perceive what has been done here.