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Wednesday, January 11, 2006

Quick Instruction On Con Law

Here's a transcript of an exchange between Senator Chuck Schumer and soon-to-be Justice Sam Alito [Thanks to Captain's Quarters]: SCHUMER: Does the Constitution protect the right to free speech? ALITO: Certainly it does. That's in the First Amendment. SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera? ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution. SCHUMER: Well, OK. I know you're not going to answer the question… For all you abortion rights fetishists out there, you have just read the debate in microcosm. There are certain rights clearly (and literally) spelled out in the Constitution such as the right to free speech (although I suspect Chuck Schumer wouldn't be so sanctimoniously in favor of another clearly and literally spelled out right...to bear arms), while others are not. That's why there is a debate over whether the Constitution recognizes and then protects certain rights. It is because they are not clearly identified and protected in the document itself. Anyone who argues in favor of abortion rights on the basis that such a right is clearly provided for in our Constitution is either uniformed or agenda-driven. Now that doesn't mean that plausible arguments cannot be made in favor of such a right. What it does mean is that the answer is not painfully obvious.
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