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Palin, Biden and the Constitution

Last night I did a post expressing astonishment at Sarah Palin's handling of questions about constitutional law as it relates to abortion in a just-released segment of the Katie Couric interviews. I figured her answers, which among other things, accepted a constitutional right to privacy (the foundation of Roe v. Wade), wouldn't go over well among her culturally conservative base.

At National Review's The Corner, Ramesh Ponnuru, a conservative whose intelligence and integrity I respect, offered this reaction, which not only defended Palin but went after Joe Biden (who was also interviewed by Couric on the same issues):

Those excerpts from Couric's interviews give me more concerns about Biden than Palin. He seems to be under the impression that there's a "liberty clause" in the Fourteenth Amendment (he has talked about it in Supreme Court confirmation hearings too). He misdescribes what Roe held. He seems to believe that Roe has been good for social peace and that this alleged fact justifies it as constitutional law.

Palin, meanwhile, is asked a somewhat oddly phrased question by Couric, and says, reasonably enough, that the Constitution protects a right to privacy. Now it is certainly and obviously true that the Constitution protects privacy: What else do the Third and Fourth Amendments protect, for example? There is nothing incompatible with either a pro-life point of view or originalism with saying that the Constitution protects privacy.

Nice try, Ramesh, but I don't think either prong of your argument holds much water.

With respect to the Couric-Palin interplay, Palin was not asked if the Constitution protects any privacy rights. She was asked, in the context of her position that Roe should be overturned, if there was an "inherent right to privacy" in the Constitution, which is about as clear a reference to the Griswold holding as any network interviewer could be expected to make. And Couric made that even clearer by referring to the "right to privacy" as the foundation of Roe. While it is theoretically possible to believe that Griswold was a correct decision while Roe was not, I've never heard anyone embracing "the pro-life point of view or originalism" take that position, and I'm quite sure Ponnuru doesn't, either. And he doesn't address Palin's weird and immediate descent into Federalist arguments about how to apply that "inherent right to privacy," which suggests an unfamiliarity with the Due Process Clause of the Fourteenth Amendment that prohibits state abrogation of constitutionally guaranteed rights.

Speaking of the Due Process Clause, which prohibits "any state [from depriving] any person of life, liberty, or property, without due process of law," this is the "liberty clause" of the Fourteenth Amendment that Joe Biden's talking about. The Court in Roe (following the concurring opinions of Justices Harlan and White in Griswold) made the protection of "liberty" by the Due Process Clause the basis for its decision, launching a debate over "substantive due process" that continues today. While Biden's use of the term "liberty clause" may be a bit imprecise, there's nothing remarkable about what he's actually saying.

As for Biden's remarks on the reasonableness of Roe, he does not, in fact, claim it has brought the country "social peace" on the abortion issue; he says "it's as close to a consensus that can exist in a society as heterogeneous as ours." And I think that's right, for the simple reason that Roe reflected the popular view (though not the views of activists on both sides of the issue) that the timing of abortions is critically important. And though they all hate to admit it (for perfectly logical reasons), that's why anti-abortion activists focus so much on late-term abortions, while pro-choice activists focus on early-term abortions, and even the "morning-after pill," although their underlying positions deny there's much of a difference in terminating a pregnancy early or late. This is what my former boss Sen. Sam Nunn meant when he used to say that Roe v. Wade "may have been bad constitutional law, but it's good policy."

To sum it all up, contra Ramesh Ponnuru, it's clear to me that Biden made a concise and reasonable argument for a pro-choice position that recognizes possible exceptions, while Palin tried to square circles, presumably in order to appeal to pro-choice voters who wouldn't like her position if they understood it. That's made much clearer by the other segment of the Couric interview in which Palin consistently describes her pro-life perspective as all about "making choices," even though she has in the past supported, and is running on a Republican platform that insists upon, a national prohibition of all abortions, at any stage after conception, with no exceptions for rape, incest, or the health of the mother.

UPDATE: Publius at Obsidian Wings offers a string of federal court decisions that use the term "liberty clause" to describe the liberty element of the Due Process Clause. So maybe Biden's usage of the term is even less unusual than I thought.