True, but her comment does put her at adds with basically the entire conservative anti-choice legal movement, inasmuch as judges like Scalia, Thomas, Alito, Roberts, etc. premise their opposition to Roe and its progeny on a textualist rejection of any right that isn't explicitly enumerated in the Constitution (this is part of what Biden was saying in his answer).

Of course, these same judges can be quite creative with inventing new, non-textual rights when it suits their mood and politics/policy. But all the same, saying you agree that there really is a right of privacy that emerges from the penumbra of the rights enumerated in the Constitution places you among the liberal, not conservative, legal theoreticians.

Will Palin's comments on the right to privacy become her "Harriet Meiers" moment? That is, will the conservative Right demand she be thrown under the bus for not having proper conservative bona fides? This argument would serve as cover for the real issue we can't talk about, which is she's just too darn bush league.

Us libs have been laboring under a misapprehension that Palin buys into the right's social agenda. As far as I can tell--from just about everything she's said publicly, and that has been reported about her--she is a libertarian-ish, small government conservative. Aside from her inquiries as to whether she could command the removal of books from the Wassila library, I've seen nothing to suggest that she has the desire to impose a Christianist social philosophy on the rest of us.

The conservative base seems under the same misapprehension. But all I see is a pragmatic conservative politician (in the Reagan mold).

Adam Serwer is a very recent journalism grad with not much real life experience. He hasn't displayed an enormity of thought, or experience, or anything that really explains why anyone should care what he has to say.

As you read his column over there, just remind yourself, this guy is a newbie J School Grad, just why should you pay any attention to what he has to say about the constitution?

He pays fealty to all the usual causes, and apparently, that was good enough for the Prospect to hire him as a blogger. The Prospect's blog has turned into a huge disappointment -- instead of challenging and questioning, they mainly have set themselves up as authorities, gatekeepers, yet another rigid orthodoxia.

Watcha smokin', Jerry?

What does Adam Serwer have to do with the topic at hand?

Palin's remarks about supporting a right to privacy does undercut opposition to Roe v. Wade, which is an application of the right to privacy. One may even argue that it would be unconstitutional for a legislature in any state to proclaim life begins at conception to the extent it undermines a woman's autonomy over her own body.

I see Kevin's point, but I am of the view that religious right activists are shaking their heads right now wondering whether Palin really does not understand the rhythm of domestic policy issues.

Kevin, Kevin, Kevin.

You say that Palin has explicitly said that abortion should not be criminalized. WRONG!

She said that the woman having the abortion should not be guilty of a crime, but that says nothing about the would be abortion providers, the doctors, clinics, etc.

Do you really think that Palin has broken with hard right to life line that would gladly criminalize anyone except the woman, because to criminalize the woman's conduct would be too extreme for the rest of us to accept.

But doctors, clinics, even the counselor or teacher that failed to report some violation of the state law banning abortion--you can rest assured that the right to life crowd would love to toss them in jail and throw away the key!

Based on my limited legal understanding, I've actually always felt that the right to privacy logic used in Roe v Wade was flawed. It seems to implicitly allow that having an abortion is criminal, but since the federal government shouldn't be aware of it, its OK. And extending the same logic to other types of behavior, like Kevin's example of killing you family, leads to a lot of untenable positions. I'm very much pro-choice, I just think the argument used in the ruling was flawed. Presumably the court was not politically able to simply make the statement that an unborn fetus hos no legal rights, so they used the right to privacy to kick the can down the road till a later date when the nation was ready for a more robust decision or a legislative action. Well, its later. If and when we win this in november, maybe its time to write some federal legislation locking down women's right to choose instead of depending on a somewhat questionable legal opinion that if challenged may very well be overturned by today's supreme court.

enormity of thought

Boo!

Kevin wrote: "Palin herself, for example, has been explicit that she doesn't think abortion should be criminalized"

Palin herself says explicitly pretty much whatever bullshit she thinks will go over with whatever audience she is trying to bamboozle at the moment.

And Palin has most certainly NOT said that she doesn't think abortion should be criminalized. She has explicitly said that abortion should be banned with no exceptions for rape or incest. "Banned" means against the law, which means "criminalized".

However, when questioned by Katie Couric for a prime-time mainstream TV audience, Palin tried to avoid the question, but when pressed by Couric, she mumbled that women who choose to abort the offspring of a rapist should not actually go to jail. She offered no such mercy towards the doctor who performs such an abortion, and if doctors face imprisonment for aborting the offspring of rapists, then rape victims won't have to worry about going to jail, because they won't be able to get an abortion to begin with.

You seem to be in the mood to cut right-wing religious extremists and kleptocrats a lot of undeserved slack lately.

assuming it is possible to overturn Roe without addressing the right of privacy, I doubt that would be the way Roberts/Scalia/Thomas would go about it. Plus that would stand in the way of doing away with Griswold, which is also on the right's hit list.

I posted the following over there and have yet received a response:

What about laws against prositution and surrogate mothers who are willing to be paid to carry other persons' babies to term?

If the right of privacy encompasses a woman's right to abortion, wouldn't a law that prohibits her from earning a living with her body also violate her right of privacy?

And yes paper, Griswold was just as wronging decided as Roe since it is entirely based on the personal policy preference of the justices in the majority.

Tell me, if freely elected Legislature of a State enacted a law that prohibited the sale of contraceptives devices within its jurisdiction, what provision of the U.S. Constitution does that law violate?

I'm not sure that Chicounsel set up enough straw men...

Chico asks: "if freely elected Legislature of a State enacted a law that prohibited the sale of contraceptives devices within its jurisdiction, what provision of the U.S. Constitution does that law violate?"

The First Amendment.

The Supremes held in Griswold:

1) The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Thus, the Connecticut legislature enacted a ban on contraception. The Supreme Court overturned that ban as follows:

2) "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights...."

3) '...the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read ... and freedom of inquiry, freedom of thought, and freedom to teach... Without those peripheral rights, the specific rights would be less secure."

4) "In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion."

Chico asked a question; that's the answer. He says Griswold was wrongly decided -- so just as overturning Roe would make Griswold shaky, which of the other cases cited by the court on the same privacy grounds is Chico ready to overturn: school choice? The study of foreign languages?

"Tell me, if freely elected Legislature of a State enacted a law that prohibited the sale of contraceptives devices within its jurisdiction, what provision of the U.S. Constitution does that law violate?"

Let me turn that question around for you. Under what part of the Constitution does it say that the state in question would have the legal basis to do so, provided that the contraceptive devices were not deemed harmful by the FDA ? You can't just make up laws that suit your personal predispositions. They have to actually have a basis that can be rationally justified. IOW, it would seem to me that you would have to show that the sale of such contraceptives is somehow harmful to the public.

Based on my limited legal understanding, I've actually always felt that the right to privacy logic used in Roe v Wade was flawed. It seems to implicitly allow that having an abortion is criminal, but since the federal government shouldn't be aware of it, its OK.

This actually has nothing to do with the right-to-privacy argument as developed in Roe. The idea is that the right to privacy erects a sphere of personal autonomy around an individuals decisions about their bodies, relationships, reproductive choices, etc., which the government needs a compelling interest to invade.

It's not that gov't could prohibit abortion, but women have a privacy right to keep gov't from getting that information -- rather, it's that when making these kinds of decisions, gov't generally doesn't have any business butting in, absent extreme circumstances. Roe lays out what those circumstances are, trimester by trimester.

The argument that this whole privacy thing is alien to the constitution and enforcing it is just an imperial prerogative of liberal justices bent on their policy outcomes lacking any regard for originalism and textualism is kind of vitiated by the text of the 9th amendment and the historical necessity that gave rise to it, of course -- there's plenty of room to disagree on the point, but I do find it hard to understand why the guys who say that "liberty" just means the first 8 amendments, when amendment 9 basically says the opposite, get to be the principled close-readers of texts.

Aside from her inquiries as to whether she could command the removal of books from the Wassila library,

Aside from inquiries over whether it's permissible to hit those who disagree with me over the head with a 2x4, I've done nothing to make people act nervous around me.

Chicounsel wrote: "Tell me, if freely elected Legislature of a State enacted a law that prohibited the sale of contraceptives devices within its jurisdiction, what provision of the U.S. Constitution does that law violate?"

While your ignorance of Griswold is as laughable as Sarah Palin's, your honesty in admitting that so-called "conservatives" such as yourself want to ban contraception is admirable.

But Palin's stated position sure puts a crimp in the anti-choice league's agenda against birth control. Not that I expect Palin to be consistent or honest about it.

Well, Michael Russo beat me to it, but let me second his answer. The word "privacy" in the context of Griswold and Roe doesn't mean what it does in ordinary conversation. It really means something closer to "autonomy". The doctrine revolves around the idea that without that assumed autonomy, the rights guaranteed in the Bill of Rights wouldn't really have meaning. (What's free speech, without autonomy?)

There's really no way to honestly claim both that individuals have a right to "privacy"/autonomy, and that the government has the ability to dictate that early-term pregnancies be carried to term. It's one or the other.

Kevin is correct. A right to privacy obviously does not necessarily mean the right to an abortion on demand.

The following is an insightful analysis of Biden's silly answer -- he is someone who is smoothly confident and sometimes passionate when talking intellectual gibberish. With that combination and a friendly press out to get Palin, he might do fine tonight.

"Biden, the constitutional law scholar and former Chair of the Senate Judiciary Committee, spoke more smoothly and authoritatively on the issue. Yet while his defense of Roe may have sounded thoughtful at a superficial level, it was actually quite incoherent. Instead of saying that he thinks the abortion right is a fundamental liberty that deserves constitutional protection — which he only hinted at later, and would be a more straightforward way to defend Roe and an abortion right under the Constitution — Biden explained that the Court's decision is "as close to a consensus that can exist in a society as heterogeneous as ours." Setting aside his focus on Roe, and his description of Roe's initial holding as if it were still the law of the land and had not been supplanted by Casey's "undue burden" test, his rationale is problematic on several levels, particularly for someone who holds himself out as an expert on constitutional law.

First, if the aim is a rule that embodies or approximates a national "consensus" on an issue, there is no reason to believe that the imposition of a uniform constitutional mandate by the Supreme Court is more likely to embody such a consensus than will the action of the legislature. Not only is the Court less responsive to popular opinion than the legislature, Supreme Court decisions are also more difficult to change than statutory enactments. Thus, even if a the Court gets it right at a given point in time, it is exceedingly unlikely that the Court's unaltered judgment will reflect a social consensus over time. If, as Biden claims, the aim is to embody or approximate the social consensus, one has to take into account the fact that popular opinion shifts, but Roe does not.

Second, if the aim is to have abortion laws that come as close as possible to embodying public values and preferences, any nationally uniform rule, whether permissive or restrictive, is less optimal than leaving the matter to the separate states. Allowing individual states to adopt their own rules will result in a greater percentage of the public living within a jurisdiction that imposes abortion rules with which they agree. To illustrate, consider a hypothetical nation with two states of equal populations. The national preference in favor of permissive abortion rules is 60% to 40%. But in State A the preference of permissive rules is 75% to 25% and in State B the preference for more restrictive abortion rules runs 55% to 45%. With a national rule reflecting popular opinion, 60% of the people live under a rule they support. Allowing each state to adopt its own rules, however, results, in 65% of the people ((75+55)/2) living under a rule they support. So, if the aim is a set of rules that reflects "consensus" within a heterogeneous society — and this is the premise that Biden himself provided in the interview — then the federalist approach is superior to a national rule, such as that embodied in Roe (or, for that matter, a national rule embodied in a constitutional amendment, such as the proposed "Right-to-Life Amendment.")

My point is not that Biden is wrong to defend Roe. It may be difficult to defend the reasoning of Justice Blackmun's opinion, but reasonable people can and do disagree over whether the Constitution should be read to protect an abortion right, as well as on the question of whether Roe should be upheld on precedential grounds. Rather my point is to show that the basis upon which Biden chose to defend Roe — the desire to approximate "consensus" in a heterogeneous society — cannot justify the outcome he seeks to defend, and reflects a poor understanding of our constitutional system (particularly for someone of his background). While Biden speaks about these issues with in an authoritative manner, and has substantial experience discussing and debating constitutional questions, the substance was sorely lacking in this interview."

Psst, Brian: he meant that Roe is settled law.

You write: "...that doesn't mean it's OK to murder your kids as long as you do it in your living room. If Roe v. Wade were overturned, states could almost certainly declare that human life begins at conception and then outlaw abortion as murder..."

"Your living room." Nice euphemism for uterus.

"Murder." There are well defined penalties for "murder." Like execution. Or life in prison. A few well publicized executions, especially of women who get an abortion after being raped, will certainly be a welcome spectacle in this great nation. We're number 1!

Both Roberts and Alito said that they believed that the right to privacy is inherent in the Constitution. Some people argue otherwise, but it isn't necessary to deny it to be pro life or even to merely oppose Roe.

Brian, did you even watch Biden’s part, or are you basing this on something you read?

First, while Biden did use the phrase ‘as close to a consensus as can exist in a society as heterogenius as ours’, he then immediately went on to explain what he meant: IE, that the Roe v Wade decision stuck the right balance between the right of privacy and the interest a state has in a child. He also discusses the right of privacy, the 14th amendment, and expounds on why there is a right to privacy even though it’s not enumerated.

And he didn’t discuss Casey – but he wasn’t asked about Casey. He was asked why he felt Roe was a good decision.

If Roe v. Wade were overturned, states could almost certainly declare that human life begins at conception and then outlaw abortion as murder regardless of any constitutional or statutory doctrine on privacy.

That's really the whole point of all this, isn't it? The "pro-life" movement is really the "pro-life at conception" movement. Their position is that a full-fledged life begins at the moment a sperm fertilizes an egg and that group of undifferentiated cells has all the same rights as you or me. So to terminate that "life" has to be considered murder. Where does this "penumbra" that grants people a right to privacy make it OK to murder someone?

So that is the way they frame the debate. The "pro-choice" people are really agnostics on the issue of life at conception. "Life" as understand it, with the concept of personhood, begins somewhere between that magic moment when the sperm fertilizes the egg and when the baby emerges nine months later. But it is hard to tell when that "life", that "personhood" begins. Roe v Wade is an attempt at creating a rational approach to that dilemma, whose only fault is that it will never satisfy someone who defines a blastocyst as a human being with human rights.

Biden did a passable job of explaining Roe in his answer and, to his credit, was able to articulate the difficulty that the two different views of when a human being is created creates in this debate. In my opinion too much attention has been paid to Palin's stunningly inane response and not enough to Biden's calm and reasoned approach.

The following is an insightful analysis

Translation from the Brian: I copied and pasted this from a conservative website.

I am not a constitutional scholar, but my constitutional law professor explained why modern constitutional analysis raises so many difficulties.

Going back to the bill of rights. James Madison did not want a bill of rights precisely because he was concerned, in part, that it would become a bill of limitations on rights -- that is, it would devolve into a mode of constitutional analysis that holds, basically, that the state can do whatever the hell it wants so long as there's nothing that says it can't. But George Mason, a realist, thought that what Madison feared would happen anyway, and that the rights we hold most important would be among those that are most likely to be limited as not being protected. Mason won, obviously.

But, as my professor said, if you look at society in the 18th century, you would be hard pressed to find laws, for instance, mandating the quality or character of intimate relations between married couples. In other words, the failure to guarantee a right in the bill of rights can hardly be viewed as the intent of the founders to enable unfettered regulation of the conduct.

So what "strict constructionists" are really espousing is an authoritarian vision of the constitution, based on the assumption that the founders in fact, were enabling any intrusive government practices that they had not specifically limited in writing. It is used as a shorthand way of arriving at "original intent" that is seriously flawed, given other historical writings that are available to show that the founders were hardly envisioning such a result.

Gregory,

It is pasted from the Volokh Conspiracy blog, which I guess is mostly conservative. The poster was a Professor Adler from Case Western. But Volokh is mostly smart persons making intelligent observations, including the following:

"A Really Stupid Ad on Judicial Appointments: I generally like the Judicial Confirmation Network and the function they serve. But their latest ad on whether we can trust Obama to appoint judges because of his relationships with Tony Rezko, William Ayres Ayers, and Jeremiah Wright strikes me as utterly illogical and just dumb. I guess we're supposed to draw from this that Obama has poor judgment? But surely it is a stretch to go from Tony Rezko raising money for Obama to saying that we can't trust Obama to appoint judges.

Surely there's got to be a more serious and effective way of addressing concerns about Obama's judicial selections than by bringing up Jeremiah Wright again."

Gregory,
If you more evidence of the intelligence and honesty of the Volokh Conspiracy, this is the lead post now on Gwen Ifell (who I think obviously should have disclosed her book, and thereby probably lost the gig, but she still is better than most MSM types as a moderator).

"Gwen Ifill: Just a quick personal word on Gwen Ifill as debate moderator and her possible bias on the debate. I appeared on The Newshour one night with her to discuss bankruptcy reform. I found her to be eminently fair and well-prepared. She understood the key issues and asked pointed questions for both myself and the other guest. Based solely on the broadcast I would not have been able to discern what her position was. But of all the interviews I've done with the media, I founder her to be one of the smartest and most even-handed interviewers that I've dealt with.

You can't necessarily extrapolate from my experience because she just may not have felt strongly about bankruptcy reform (how can that be!), but based on my experience with her, she seemed really smart, well-prepared, and fair."

Brian, everyone's favoerite faux-reasonable Republican concern troll, wrote: It is pasted from the Volokh Conspiracy blog

Then why didn't you cite it in the first place? That would have been the intellectually honest thing to do. oh, but I forgot -- it's you. Never mind.

which I guess is mostly conservative.

You "guess" right.

Volokh is mostly smart persons making intelligent observations

Translation from the Brian: Volokh is a conservative blog.

Brian, even before kevin moved here, no one has been fooled by your pretense or your propaganda. Blow.

If you want more evidence of Brian's dishonesty, notice that he uses the buzzword from right-wing blogs: "disclosed" her book. Thus implying that she had something to hide, hm?

She didn't need to "disclose" her book; its existence has been a matter of public record and, if memory serves me right, is cited on her PBS bio page.

More evidence of Brian's role as a Republican propagandist -- aside, of course, from his argumet-by-assertion above that only his interpretation of the Constitution is valid -- is his implication yet again of liberal media bias. That dog won't hunt any more, Brian.

Your vouching for anyone's "intelligence and honesty" doesn't do them any favors, Brian.

Jackass.

What Couric should have asked is whether Palin agreed with Griswold v. CT, which basically (in the most symplistic terms) gave a constitutional right for people to make birth control decisions for themselves and really led the way for Roe.

Maybe they should ask her whether she agrees with Myers v. Nebraska. (That one involves a challenge to parental authority rather than abortion rights.)