Following up (sort of) on Paul’s very thoughtful recent post on the role of religious reasons for public officials’ actions, I am interested in people’s reactions to this piece, from Jurist, by Professor Elizabeth Price Foley. She contends that, because “[t]he Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as ‘human life'”; and because, given Casey and Roe, “under the Constitution of the United States, parental liberty trumps any interest government might have in protecting pre-viable human embryos”; it is therefore the case that “when President Bush justified the use of his veto power to prevent ‘the taking of human life,’ he was using Executive power to effectuate a personal moral view that is fundamentally antithetical to the law as declared by the Constitution and interpreted by the U.S. Supreme Court. He was defeating a legislative act – thwarting the will of ‘We the People’ – to pursue an agenda contrary to our declared Constitution.”
Is this argument — I hope I have stated it fairly — persuasive, or even plausible? Put aside, for now, doubts about whether the Roe line of cases in fact stands for a constitutional-law rule that pre-viable embryos are not “human life” (as opposed to a rule that, because such embryos are not “persons” protected by the Fourteenth Amendment, before viability, a woman’s privacy and liberty interests outweigh whatever interests the state might have in protecting them). Is it likely that the President’s duty to “preserve, protect and defend the Constitution of the United States” precludes him from vetoing a bill for moral reasons that are in tension with the premises and implications of a particular line of Supreme Court decisions? I would not have thought that even the strongest judicial-supremacy positions entailed such a result.
Posted by Rick Garnett on July 26, 2006 at 01:02 PM
Comments
I think Foley has it right. Her point is a subtle one, and one that most other comments seem to have missed entirely. To try to sum it up, she’s saying that it is normatively undesirable for a President to use his veto because he disagrees with the established law of the land (in this case, a constitutional right to terminate previable embryos). President Bush’s stated reason for the veto, in other words, is a bald denial of the legitimacy of current constitutional law. Foley is not saying that the President cannot do this, she is saying that he SHOULD not, because it shows disrespect for law with which the President personally disagrees. If you know Foley’s prior work (I do), you know she is far from an ideologue, so the previous comments accusing her of this are just way out of line.
Posted by: cpm | May 6, 2008 5:42:43 PM
The article implies that the Executive and Legislative Branches have no role in interpreting the Constitution. That is ridiculous. The President is obligated to decide on the constitutionality of every bill that he signs. His decision should be informed by all possible sources, including Supreme Court opinions, but not controlled by them.
Indeed, the Presidential veto is one of the underpinnings of judicial review. If the branches are co-equal, then he must have a say in deciding the constituionality of a law. Congress decides a law is constitutional anytime it passes a law. The President decides a law is constitutional when he signs it. And the Court gets to decide when a proper case or controversy about a duly enacted law exists. But the first line of defense against unconstitutional laws is not the courts, it is Congress and the President.
Imagine Roe and Casey and been decided the other way and a federal abortion ban bill had been presented to the President. If he had refused to sign it, believing the bill unconstitutional, would Professor Foley have criticized him for illegal action? It’s doubtful. Rather, the President is interpreting the Constitution in a way that she disagrees, so she’ll use any argument to support her cause, whether theoretically sound or not.
Posted by: PK | Jul 27, 2006 10:11:37 AM
The article is worse than you say, since the vetoed bill dealt not with the “liberty” to dispose of human embryos, but with federal funding for the disposal. Sloppy is too nice a description for this.
Posted by: Thomas | Jul 26, 2006 6:56:32 PM