Archive for September 19th, 2008|Daily archive page

Justice Antonin Scalia on Charlie Rose

I just saw an interesting interview of conservative Supreme Court Justice Antonin Scalia with Charlie Rose.  In the 56-minute interview Scalia discusses his judicial philosophy, originalism, and how it applies in a number of cases and often leads to judicial outcomes that he finds undesirable but required by the Constitution.

Other topics of interest covered in the interview include Bush v. Gore and Scalia’s friendship with Justice Ginsberg, with whom he shares a fondness for opera.

Divided government

Conservative Washington Post columnist George F. Will has a recent op-ed in which he says that the possibility of divided government is good for John McCain. Since the Second World War, 19 of 31 election cycles have resulted in divided government–one party controlling the presidency and the other controlling the Congress; Americans seem to like this and, as there is little chance that Republicans will control Congress in January, the only chance for divided government is a McCain victory.

Will brings this up again in a more recent editorial, where he points out that over the past 50 years government spending has increased an average of 1.73 percent annually during periods of divided government, but that rate more than triples, to 5.26 percent, for periods of unified government.

Using a similar type of analysis, Slate has a recent article in which they point out that the economy seems to do better under Democratic presidents than under Republican ones–using metrics that conservatives find most important. Looking at the post-1959 economy, they report that Democratic presidents have been better than Republican ones on GDP growth (4.09% vs. 2.94%), inflation (3.81% vs. 4.5%), defense spending (higher under Dems), non-defense spending (lower under Dems), and a better federal budget deficit/surplus situation (-1.21% vs. -2.7%). Only federal taxes (slightly lower under Reps) were more in line with conservative ideals under Republican presidents.

There are too many variables to draw terribly firm conclusions from the data in the Slate article; there isn’t a large enough data set anyway. But it implies that perhaps the ideal situation is a Democratic president and a Republican congress, which is what did occur during six of the eight Clinton years during which the economy did quite well indeed.

Colorado’s Amendment 48

The Flag of Colorado, one of the best in the Union

The Flag of Colorado, one of the best in the Union

This November the citizens of Colorado will be deciding on 18 ballot initiatives, including one which would amend the state’s constitution to expand the definition of person to include a fertilized egg.  The measure is called–deceptively, according to some opponents–the Colorado Equal Rights Amendment, and is also known as the Definition of Person Initiative or Amendment 48. 

The text of the initiative reads as follows:

Be it Enacted by the People of the State of Colorado: SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read: Section 31. Person defined. As used in sections 3, 6, and 25 of article II of the state constitution, the terms “person” or “persons” shall include any human being from the moment of fertilization.

Supporters obtained 103,000 valid signatures to get the measure on the ballot; 76,000 were needed.  They hope the measure will make illegal most, if not all, abortions in Colorado.  Focus on the Family, which is headquartered in Coloado Springs, is one of several groups supporting the measure.

The amendment is the brainchild of 21-year old Kristi Burton, who says “The word ‘person’ in our constitution has never been defined and because of that, there’s a whole group of people in Colorado who aren’t protected. And, certainly that would be the unborn child.”  Supreme Court Justice Harry Blackmun, author of the Roe v. Wade decision, said that the right to an abortion would be nullified by the rights of the unborn if the unborn constituted a person with rights.  As Justice Antonin Scalia argued in his dissent in Planned Parenthood v. Casey,

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its “balancing” is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

He further argued that “The States may, if they wish, permit abortion on demand,” if the unborn are not considered persons, “but the Constitution does not require them to do so,” since it contains no definition of person that speaks to the issue at hand. 

Legally, the abortion debate is not really about whether killing unborn persons is okay or not–everyone agrees that killing people is wrong.  The issue is at what stage personhood is gained in the developmental process, from egg to birth, personhood is gained.  The Colorado ballot measure attempts to legally define that point.

The measure has many opponents, who have said that the measure may criminalize certain popular forms of birth control, like the morning-after pill and intra uterine devices,  which operate by preventing the implantation of the fertilized egg in the uterus.  This could be tantamount to murder if Amendment 48 is approved. 

Abortion rights groups are joined by the state’s major medical associations and societies in opposing the measure, which could make doctors who treat women of child bearing age liable to criminal prosecution, since just about anything more involved than taking a woman’s temperature could potentially impact the health and prospects of a fertilized egg that she is carrying.  Treatment of ectopic pregnancies, which often involves the termination of the pregnancy to protect the life of the mother, might also be considered murder, though I suspect the courts would eventually rule that terminating such a pregnancy, which presents serious risks to the mother, is okay.  However, most agree that lots of litigation is probable if the amendment passes.

Incidentally, only about 50% of all fertilized eggs implant in the womb.  Of those that do, about one in five will miscarry without human intervention.  (A large portion of these failures are due to genetic abnormalities.)  Thus, one might say that, if this Amendment passes, something like 60% of all people in Colorado are never even born, for completely non-abortion related reasons.

I couldn’t locate any polling data on the measure, but I think this vote will be another interesting one to watch on election night.  Colorado polls close at 7pm Mountain Time; the state is widely considered a swing state in this year’s presidential election.