Legal News

Palin and Biden Weigh In On Roe and Federalism

By Dan Slater

Last night, while some of you were too wrapped up in the Red Sox’s trouncing of the Angels to notice anything else, the Law Blog was watching replays of the first installments of Katie Couric’s “Vice Presidential Questions” series. For our money, the most intriguing round of Q&A’s began with questions about Roe v. Wade and led to both candidates discussing their views on federalism.

On Roe v. Wade: good or bad?

For Palin, Roe raises federalist concerns. “I think it should be a states’ issue not a federal government-mandated, mandating yes or no on such an important issue,” she said. “I’m, in that sense, a federalist . . .” Yet, in a sign that Palin perhaps eschews originalism, she said she supports the idea that there’s a right to privacy in the Constitution — which, as Couric pointed out, is the “cornerstone of Roe v. Wade.”

But, for Biden, the salient feature of the Court’s decision in Roe was its ability to find a happy middle. “[I]t’s as close to a consensus that can exist in a society as heterogeneous as ours,” he said. He explained: “What does it say? It says in the first three months that decision should be left to the woman. And the second three months . . . then the state, the government has a role, along with the woman’s health . . . And the third three months they say the weight of the government’s input is on the fetus being carried.”

A right to privacy in the Constitution?

Again, Palin fell back on federalism. “I do. Yeah, I do,” she said. Later, she added: “And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.”

Biden said he thinks “the liberty clause of the 14th Amendment . . . offers a right to privacy.” Though he acknowledged that his “conservative scholar friends” disagree.

Supreme Court decisions you disagree with?

Biden, who teaches law school classes, went straight for the commerce clause. He said, “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 . . .But [the U.S. Supreme Court] said, “No . . . there’s no federal jurisdiction.” [Presumably he was referring to the Courts’s 2000 decision in U.S. v. Morrison.]

For Palin (not a lawyer) this seemed to be the most difficult question of the interview. When pushed by Couric to give specific examples of cases she disagreed with, Palin offered this sentence to nowhere: “Well, I could think of . . . any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I’m so privileged to serve, wouldn’t be in a position of changing those things but in supporting the law of the land as it reads today.”

Full post as published by Law Blog - WSJ.com on October 02, 2008 (boomark / email).