Alito

Alito & Spousal Notification:

The nomination of Alito has been a good thing for the country, if only so we could have this debate. The question is, "We've come to something of a settlement on a woman's rights. Now, what rights does a father deserve, and how do we balance the two?" The de facto answer is that we don't: the father's sole reproductive right is to keep his pants on. After that, the woman alone has the choices.

This answer has been reached because of two separate strains of American thought. The feminist strain is well understood. But there is a masculine approach here as well, of which I've been a long-term member, which holds that men have duties and ought to be bound by honor. The sentiment is conveyed by John Wayne's character in Rio Grande, speaking of his son's enlistment in the cavalry: "He must learn that a man's word to anything, even his own destruction, is his honor."

The de facto answer is the cross-roads of those two modes of thinking. The feminists insist that abortion be seen as a medical procedure that is the woman's business and no one else's. The child has no rights that ought to bind her, because the advocates for the woman's position in our law insist on that point. The masculine understanding, however, holds that the man's rights are overwhelmed by his responsibility for the child. The men who have ruled the discussion, men like me, feel that fathering a child is an awesome duty and one that ought to bind you. The compromise position gives both sides what they want: the leading thinkers of the women's position have demanded freedom for women; the leading thinkers among men have demanded responsibility for men.

So here we are. Yet the compromise is not tenable.

Consider the comment thread here, in which the conflict is laid bare by one of the blogosphere's greats, Allah himself. The death of Allah's blog remains a subject of lamentation, but it's good to see him still active. [UPDATE: Slight editing change to update links, Aug 2008.] The key quote that he gets out of Lauren of Feministe.us is this:

I’m obviously no legal scholar, but it seems to be that Alito has to decide between being a good judge and upholding crappy laws. Personally, I’m not so much for judicial means (problematic, I know) as long as it reaches a satisfactory end.

This is, of course, exactly what is meant by "judicial activism" -- the notion that the function of the judiciary is to strike down laws that are unpleasant, or undesirable, rather than unConstitutional. That is the real debate which we need to have, and it is one that has come directly to the fore here.

The fact is that the feminist and masculine reasoning on abortion is not compatible. We have reached a compromise that has lasted this long because the feminists were primarily interested in the effect of laws on women, and the men have primarily been interested in the duties of men. A compromise arose that gave each side what it wanted.

That cannot last. The same focus on duty that underlies the masculine position is horrified by this idea of the judiciary. The duty of the judiciary is to uphold, not make, the law. It is to judge constitutionality in order to preserve the Constitution, not to advance any other agenda. A political force that seeks judges who will advance their agenda in defiance of that duty is not acceptable. It does not matter if they are otherwise right, or otherwise wrong. The debate is pointless. They are demanding a class of public servant who will consider it proper to ignore core duties.

Nothing could be more unhealthy, or less likely to produce good government.