- The Washington Times - Tuesday, September 20, 2005

Roberts and Roe

After watching the first round of questioning by Senate Judiciary Committee members of Supreme Court nominee John Roberts, one cannot help but see that Roe v. Wade is the Plessy v. Ferguson of our time (“Roberts defends Roe as ‘a precedent’,” Page 1, Sept. 14).

Abortion rights and civil rights became strange bedfellows as Senate Democrats used contradictory tactics to question whether Judge Roberts was willing to defend either.

Committee Democrats have made it clear in public statements that they consider precedents to be sacrosanct and expect judges to also, lest Roe, a bedrock value of the modern Democratic Party, be overturned.

During his opening questioning, pro-choice committee chairman Arlen Specter did the Democrats’ bidding and attempted to ensure that a precedent is irreversible, at one point gesturing to a huge poster board of cases that came to the Supreme Court and that the court could have used to overturn Roe but did not. At another point, he tried to intone that Roe was a “superprecedent” (i.e., really irreversible).

However, in later questioning the same day, both Sens. Edward M. Kennedy and Herb Kohl spoke of the importance of the court’s recognition of societal “progress” in making decisions, specifically pointing to Brown v. Board of Education, the 1954 decision that overturned Plessy and desegregated public schools.

Mr. Kohl raised the stakes, exhorting Judge Roberts to alter the baseball analogy of his opening statement (in which judges are as umpires, not players, by applying law rather than making law) such that, in cases such as Brown, judges should “think outside the box” and not call the law as it is written if it impedesnecessarysocial progress.

Mr. Kohl, in effect, demanded that precedents (and the law itself) be overturned if it was clear (to the judge) that the law was doing society no favors.

While Democrats no doubt look favorably on overturning precedents that conflict with progressive social policy and look unfavorably on overturning precedents that they think advance it, it became clear that their strategy of defending Roe by making precedents sacrosanct was flawed and could not help but have holes poked in it, no less by their own senators.

Judge Roberts even might use Mr. Kohl’s reasoning if ever he were to write the opinion that overturns Roe; luckily for the senator, this is doubtful because Judge Roberts presumably would just use the same reasoning he used in his response to Mr. Kohl’s question — that the original decision was outside the box and the law as written (in this case, the 14th Amendment) demanded an overruling of that precedent.

It became clear to onlookers like myself that highly controversial precedents that have questionable basis in the Constitution (such as both Plessy and Roe) may and should be overturned regardless of how many years (or how many cases) have passed us by since the original error was made.

It also became clear that Democrats do not fathom real societal progress, either in 1954 or today. Indeed, the parallels between the two cases are remarkable: Both were nifty interpretations that were used to permit grave injustices to society’s most defenseless individuals; both passed on the insistence of their defenders that the practice the case permitted (segregation, abortion) was less important than the supposed right (states’ rights, the right to privacy);bothdubiously claimed to have limited de facto effects on their victims (facilities were separate but “equal,” women will still get back-alley abortions); and both have been zealously defended by the Democratic Party.

It took the court 58 years to overturn the Plessy precedent, only after the majority of Democrats finally joined Republicans in their opposition to its injustice. Will we have to wait 58 years for Democrats to come around on Roe, too?



Church and state

David Limbaugh’s interpretation of the First Amendment is wrong (“Benchmarks of activism,” Commentary, Monday).

As the records of the first Congress clearly show, First Amendment language merely to ban “establishment of a national religion,” which we were in no danger of having, was specifically rejected in favor of the provision, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thomas Jefferson correctly wrote in 1802 that this provision built “a wall of separation between church and state,” and the Supreme Court rather faithfully agreed, from its first church-state case in 1947 until the 1990s, when the Rehnquist court began, improperly, to take bricks out of the “wall.”

The Supreme Court’s church-state rulings, until beginning to waver in the mid-1990s, protected and advanced the free exercise of religion and religious freedom by ending government meddling with religion.

We might note that as recently as 1952, Congress approved the Constitution of the Commonwealth of Puerto Rico, which copies the First Amendment and then adds, “There shall be complete separation of church and state.”



Americans for Religious Liberty

Silver Spring

‘Peak efficiency’

It sounds as if House Majority Leader Tom DeLay has been using some fuzzy math if he thinks there is no fat left to cut in the federal budget. The assertion that our government is running at peak efficiency is hard to defend in light of undeniable evidence to the contrary (“DeLay declares ‘victory’ in war on budget fat,” Page 1, Sept. 14).

Several watchdog organizations have found government waste that can be cut immediately. For instance, the Heritage Foundation reports that Washington spends $60 billion annually on corporate welfare versus $43 billion on homeland security.

The government loses $9 billion every year in Earned Income Tax Credit (EITC) overpayments.Thefederal transportation bill has nearly 6,500 pork-barrel projects costing $24 billion. The federal government cannot account for $24.5 billion spent in 2003. This is peak efficiency?

Fiscal responsibility requires tightening your belt when disaster strikes. In order to meet the demands of our current national disaster, Congress must cut nonessential spending and redirect funds toward repairing the damage. In a time of crisis, spending priorities must change.

Every elected official should remember that each dollar borrowed today is a debt our grandchildren must pay. No responsible parent wants to saddle his children with a legacy of irresponsible spending.


Coeur d’Alene, Idaho

Defending Turkey

Concerning Tulin Daloglu’s Tuesday Op-Ed column, “Much ado About Turkey,” I can only partially agree with Gunay Evinch, a lawyer who compares the Turkish-Armenian dispute to the Japanese-American tragedy of World War II. The Japanese who were interned here did not form an army, did not possess weapons and did not attack American towns and interests. The Armenians did all that during and after World War I in the Ottoman Empire.

Furthermore, the British government held a war crimes tribunal on the island of Malta after the war and brought 144 Turks to be tried. The British consulted all the Allies, including the United States, and no proof that the Turks intended to eliminate the Armenians for their race or religion was found, and all the Turks were released.

This is in sharp contrast to the Nuremberg trials that took place a quarter of a century later.


Alton, Ill.

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