The random political thoughts thread (Part Deux)

[Strangler Lewis]

Originally Posted by Alex Stroup

Since no new information has come forward on the constitutional merits of this law I can only assume that Mr. Reid voted for a bill he believed unconstitutional for political expediency and with the unstated assumption that a court would strike it down.

In a just world, would not voting for a law you believe unconstitutional be something bordering on treason?

The first part of this is not strictly true. In passing the law without a health exception, Congress made a "finding" that no health exception was necessary because the procedure could never be justified to prevent damage to the pregnant woman's health. When the law was challenged at the district court, there was testimony on both sides of the issue. Because the testimony conflicted, the Supreme Court said that the law survived a facial challenge. The Court also said that the Congressional finding was hooey, but that other "findings" provided a rational basis for the law. None of this is to suggest that Reid and others actually put their faith in the legislative "findings."

Somewhat less dramatically, the strongest grounds for suggesting the law is unconstitutional is that Congress arguably lacked the power to enact it under the Commerce Clause. Justice Thomas mentions this in his concurrence. Whether he did this out of a genuine limited federal government impulse or out of the desire to push the issue towards whether a fetus is a person under the Due Process clause--which would provide an alternative ground for Congressional action--will have to wait further developments.

For those who like a little light--and disingenuous--reading, here's the opinion.

http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf