Will Alito join the resistance?

Star-Telegram | Don Erler:

“Defenders of constitutional law can hope, however, that the precise legal reasoning of the new chief justice and the week-old Justice Alito will weaken the resolve of the Supreme Court's four liberal ideologues to continue their assault on the Constitution. ... And make no mistake: As I told some seasoned citizens in a recent talk on how ‘alive’ our Constitution is, the Supreme Court in recent decades has essentially ruled unconstitutional key provisions of the Constitution.”

Ed Cognoski responds:

Who one thinks is assaulting the Constitution all depends on where one sits. Mr Erler presents his opinion on the matter as settled fact, instead of mere opinion, which it is.

Take his black and white statement, "True, the 1973 decision has no defensible legal or constitutional rationale." He makes no attempt to back up this bald statement with any defensible legal or constitutional rationale himself. He just throws it out there as if he is saying, "True, the sun comes up in the east." The Supreme Court's majority opinion in Roe v Wade offers a defensible legal and constitutional rationale for upholding a woman's right to control her own body. Mr Erler is welcome to dispute it, but to dismiss it as if no counter-argument to his beliefs even exists, is blatantly false.

Take his claim that "political advertising close to an election can be banned by law." That remains to be seen. Campaign finance reform legislation has been passed by Congress, but much of it remains to be tested in the courts. I will be surprised if much of it isn't struck down as unconstitutional. Ironically, Mr Erler, who seems to celebrate Europeans for being ruled by "laws drafted in the give-and-take of legislative compromise", will probably be the first to cheer American courts if they overturn, on constitutional grounds, provisions of campaign finance reform. If that happens, the fact that the laws were drafted in the give-and-take of legislative compromise will hold no magical significance to Mr Erler. Like I said, it all depends on where one sits.

Take Mr Erler's equating the Dred Scott decision with Roe v Wade. One could take offense at Mr Erler treating fully adult African-Americans as legally and morally no more significant than a fertilized egg. But he's right that there are Constitutional issues involved in both cases. Just as the Dred Scott decision took a Constitutional amendment to overturn, Roe v Wade should, too. The Republican Party saw to it that America passed the Thirteenth Amendment, to its everlasting credit. If Mr Erler wants to extend personhood to fertilized eggs, he ought to be working on another Constitutional amendment to that effect. And quit trying to get activist judges to invent and assert such a right. The assault on the Constitution can come from both sides of the partisan debate, despite Mr Erler's attempt to claim the high moral ground.