Scary: Arrogance vs. Ignorance

Looking at this video featuring Katy Couric's interviews of Joe Biden and Sarah Palin, it's hard for me to say which is worse. Palin's lack of an answer to Couric's questions, "What other supreme court decisions do you disagree with? ... Can you think of any?" is astounding [1]. I would like to see the same question asked of Couric herself, though. I think 98% of the population, when set in front of a TV camera and asked questions that they aren't warned about, might freeze up for the exact name of more than one Supreme Court decision. Then again, 98% of the population is not trying to get into the office one heartbeat away from the Presidency.

But the Biden answer, which Couric listens to and does not try to challenge in any way, is scary for both its wrongness and for its demonstration of arrogance and raw power lust. Biden says:

What does [Roe v Wade] say? It says in the the first three months that decision should be left to the woman. In the second three months where Roe v Wade says well then the state the government has a role along with the woman's health they have a right to have some impact on that. In the third three months they say the weight of the government's input is on the fetus being carried.

In fact, the relevant text is as follows:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. [emphasis added] Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

Note that Biden's error with respect to the first part is that the decision is not left to the mother, it is left to the attending physician [2]; at no point is a right for the mother to choose left to her. It also does not specify a second trimester or third trimester. At some point, should the point of viability be pushed back to the beginning of the second trimester, the text allows proscription of abortion. As to his repeated claim that Roe v Wade is the closest we can come to a consensus, I argue that it is not and that there are good reasons to abandon it here.

He then goes on to assert that the 14th Amendment offers a right to privacy. Here again, the actual text is:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No one shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Again, even though I think a right to privacy may exist [3], I cannot find its guarantee anywhere in that amendment. A guarantee of due process is not the same thing, since the state may, after going through due process, deprive you of any damn thing it wishes, including your privacy and even your life. His rejoinder to people who might want to see such a right enumerated is that he thinks people have an inherent right to privacy. So the game is:

1. Claim it's in the constitution.
   
2. When it is pointed out that it is not, shift the debate to "inherency" of the right.
   

Suddenly, we're into the realm of the metaphysical, where we have god-granted and other natural rights whose origins are beyond rational debate. But it is phrased as if we were still talking about the content of the 14th Amendment.

Biden's final foray into Constitutional Law in the interview is to first turn the concept of federalism on its head by abusing the language and intent of the Commerce Clause, then to claim that his hearings "proved" there was a interstate commerce effect of abuse [4], and then to claim that the Supreme Court is wrong in its decision. He begins by claiming authorship of the Violence Against Women Act (VAWA) of 1994, claiming this allowed women to sue men in federal court. You wouldn't know it from Mr. Biden's statements, but there are already state and local criminal laws against such abuse, and nothing I know of which prevents the abused from suing the abusers. So what was the purpose of federalizing? The argument for federalizing (not explored in the interview) was based on the claim that state and local authorities do not prosecute crimes against women nearly as often as crimes against men.

Now, surely Senator Biden knows that the basis for using the Interstate Commerce Clause as the basis for federalizing is a Pandora's Box for abuse of power? I hold that there is nothing that couldn't be tied to interstate commerce. For example, let's say that a farmer is raising wheat for consumption on his own farm. It isn't being sold commercially or otherwise, and it isn't being transported across state lines. Clearly, that has nothing to do with interstate trade, right? Wrong, said the Supreme Court in Wickard v. Fillburn [5]. In fact, they were correct in that part of their reasoning [6] since any commodity grown for home consumption is competing directly with commodities being sold. Back massage? Deprives masseuses of their income. Vacuuming the carpet? Deprives maid service companies of their income. Napping? Deprives employers of your productive time and television advertisers of your eyeballs. Thus, production of anything can be called "interstate commerce", and therefore everything comes under federal rather than state or local jurisdiction. This stands the concept of the United States of America, a federation of independent states collectively united for a few specific purposes, on its head.

But even if we were to accept the need and the Constitutional basis for the Act, it is far from being the clear assertion of Civil Rights protection that Biden seems to assert. According to the Wikipedia article on he Act, even the ACLU originally opposed portions of the VAWA,

saying that the increased penalties were rash, the increased pretrial detention was "repugnant" to the US Constitution, the mandatory HIV testing of those only charged but not convicted is an infringement of a citizen’s right to privacy and the edict for automatic payment of full restitution was non-judicious [emphasis added]

Interesting that privacy advocate Biden is not above violating the privacy of men [see note 4 again] when it advances his political ambitions.

Like many "living constitution" advocates, Biden likes to play both sides of the game. When the constitution is on his side, he pounds on the constitution. When it is against him, he pounds on the ability of courts and congress to go over, under, and around it on the basis that concepts like "original intent", "enumerated rights", and other text-based arguments are obsolete, relics of the past. This is a man who -- like George W. Bush and Bill Clinton and so many other presidents who have come before -- is enthusiastic about asserting greater power for the executive branch to monitor and regulate the private lives of citizens.

Where were Couric's follow up questions similar to those she condescendingly put to Palin:

"So, is there any assertion of government power with which you disagree?"

"Can you think of any?"

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[1] Having personally seen how interviews go from casual discussion to final product, I caution that one must remember that these things are edited for effect. This seems to be a "gotcha", but I would want to see raw video first.

[2] As a matter of historical fact, the original bans on abortion came from the AMA's own opposition to it. Also, recall that "the attending physician", as licensed by the state in accordance with the AMA's own campaign to restrict competition, is effectively an imperfect agent of the state.

[3] Can we define privacy? Most crimes can be said to be committed in private, so I don't see this as an easily defined concept.

[4] Interestingly, only when it is a woman abused by a man: not men abused by other men, not men abused by women, not women abused by women, but only women abused by men. According to arguments aggregated on this site, the definitions of man as abuser and woman as victim are so embedded that the strings attached to shelter funding provided by the act proscribe admitting men to abuse shelters:

Although a significant number of domestic violence victims are male, VAWA defines victims as female. As one result, tax-funded domestic violence shelters and services assist women and routinely turn away men, often including older male children.... A lower-bound figure is provided by a recent DOJ study: Men constituted 27 percent of the victims of family violence between 1998 and 2002....

By omitting male victims from their efforts, however, domestic violence activists create the impression of a national epidemic that uniquely victimizes women who require unique protection.

So Biden's law seeks to correct a problem -- lack of prosecution of crimes against a minority (actually, women make up 51% or more of the population) -- by making sure that the "majority" are doubly wronged: first, by violating their rights to privacy and due process, and second, by shutting them out of the federal aid when they are the victims. Nice.

[5] Biden almost certainly agrees with the Wickard v. Filburn decision, which is one of the most important decisions for establishing the federal government's power to meddle in private affairs. It was the basis for the Gonzales v. Raich decision, in which the federal government successfully sought the power to stop people from growing marijuana for their own medical consumption.

[6] "Their reasoning" being limited in this context to noting that every activity is related to interstate commerce. Their subsequent aregument that this makes it okay to allow Congress to regulate on that basis is flawed, since it ignores what Congress meant by the clause in the first place. The court's reasoning along those lines reduces the clause to a meaningless nail upon which to hang their hat. Congress put the clause there to prevent states from getting into mercantilist wars with one another, blockading rivers against traffic coming from the state upstream, using different definitions of weights and measures, and so on, not to give Congress an opening through which they could do whatever they want.