Legal Commentary

Waldman versus Waldman

By David Bernstein

Here are opposing views on the whether the Supreme Court should interpret the Constitution to limit government, or should defer to the elected branches. Both are from Michael Waldman of NYU?s Brennan Center.

Waldman 1:

Ultimately, America has grown stronger when active citizens, organized pressure groups, and accountable politicians wrestle with large policy challenges. The results often aren?t pretty, and can resemble a Rube Goldberg machine more than an iPad. But far better to have social policy set through a messy, noisy democracy than through a pinched reading of the Constitution.

Waldman 2:

?I do believe in a woman?s right to choose an abortion. I believe it comes from the same constitution that our civil rights come from.... Waldman quickly pointed out that before Roe v. Wade thousands of young women died from botched abortions.?

Perhaps not surprisingly, while Waldman 2 doesn?t want social policy on abortion set through a messy, noisy democracy, but through a pinched reading of the Constitution (specifically, the scope of the states? police powers), Waldman 1 wants federal health care policy to be set through messy, noisy democracy, and not through a pinched reading of the Constitution (specifically, the scope of federal power under the Commerce Clause).

There are perfectly reasonable arguments that the health care mandate is constitutional. But no one who supports Roe v. Wade is any position to accuse judges who rule otherwise of failing to respect democracy, interfering improperly in ?social policy? based on their own understanding of the consequences of the relevant legislation, or reading into the Constitution limitations on government power that aren?t there.

UPDATE: In response to early comments, of course there are perfectly legitimate, albeit debatable, reasons to be for Roe v. Wade and against invalidation of the individual mandate. But one can?t legitimately be for Roe v. Wade while being against invalidating the individual mandate for certain reasons that Waldman and others have suggested about the latter?that invalidating the individual mandate would be disrespectful to democracy, a judicial intervention into social policy, and/or an atextual limitation on government power. All of those criticisms apply, but more so, to Roe v. Wade?s invalidation of the abortion laws of all fifty states based on the Fourteenth Amendment?s Due Process Clause.

Full post as published by The Volokh Conspiracy on February 07, 2011 (boomark / email).