Thursday, August 05, 2004

Dueling Opinions: Jobim's Fourth Response To Me

I'll be posting a reply later today:
Facts are stubborn things, so some quick facts:

- Whatever his rhetoric, Bush has hardly governed very far to the right
(see, e.g., his spending, his education bill, his spending, his acquiescence
to many Clinton-era positions that were vulnerable on the merits (e.g. Title
IX, arsenic), his spending, his prescription drug program, his spending, and
so on)
- DOMA can only be constitutional if same-sex marriage is a constitutional
right -- a position Kerry disavows. Moreover, there is active dispute among
ConLaw scholars as to whether it is "necessary" to prevent one state from
opposing its views on another (I teach the subject and I'm on the ConLawProf
discussion list); finally DOMA IS the federalist position because it says
each state gets to do what it wants, and not what the feds or other states
want it to do. Kerry has a stated position, but I am not aware he has
repudiated DOMA.
- [Finnegan] is wrong on the FMAs. Some of those proposed (but not voted
on) would have effectively constitutionalized DOMA (see, e.g., Michael
Greve's proposal at AEI), or prevented any courts from imposing gaymarriage,
but not legislatures (see,e.g., Sen. Hatch's proposed language). Preisdent
Bush made clear he was not particular as to which language was used (a
position which annoyed those conservatives who believe the Hatch language
was unacceptable).
- On abortion, the plurality of Americans are inbetween Kerry and Bush.
That is, they reject either "extreme" (abortion on demand like Kerry or no
abortion save rape, incest, or threat to the mother like Bush). They
clearly support restrictions (as shown by the bipartisan majorities for
banning partial birth and the proliferation of state restrictions). But, as
a practical matter, Bush supports legislation that a majority of Americans
support, Kerry does not.
- As for Roe v. Wade, the consequence of overturning Roe is not prohibiting
abortion, but returning the issue to the states. I have seen no polling
data or other evidence to suggest this is opposed by a majority of
Americans, nor is it inconsistent with a moderate pro-choice position (such
as my own). In addition, I would note that it is arguably the most
criticized Supreme Court decision of all time -- even by us ConLaw scholars,
including my colleagues to the Left -- so supporting its reversal is hardly
an extreme position.
- As a simple factual matter, it would take the replacement of TWO liberal
judges to overturn Roe, not one. There are only three votes against Roe
right now (Thomas, Scalia, Rehnquist). Justice Kennedy voted to uphold
Nebraska's partial-birth statute, but made explicit he did so based on
Casey, which he co-authored with O'Connor and Souter and which upheld the
"central holding" of Roe.

As for the bigger issue, I'll return to why I think libertarians should
either vote for Bush or stay home when I have more time. Let me just start
by noting that under Clinton, we largely got the worst of both worlds on
civil liberties. When it came to the drug war, civil forfeiture,
surveillance, etc., Clinton was terrible, and I expect Kerry will be as
well. For more on this, see the Cato Institute paper by Tim Lynch on
Clinton's civil liberties record, the Wired issue comparing Clinton and Dole
(both suck on social e-liberty issues, but at least Dole would protect
e-business), or the John Berlau Reason article for Kerry's civil liberties

In theory, there are reasons for libertarians to support liberal candidates
for national office, but they don't deliver on the few things they are
"good" on. With Republicans, the record is marginally -- but
demonstrably -- better. But, again, I'll return to this when I have more


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