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What Miers should say

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Gonzales v Oregon is the Supreme Court latest attempt to deal with a contentious social issue. The Wall Street Journal editorial board recently declared, “The Oregon case will be an early test of whether the Roberts Court will continue and extend William Rehnquist’s legacy of restoring meaning and force to the notion that our system of government is one of limited and enumerated powers.” The case will decide if a state legislatures can work their own solution to a specific social issue or if the federal government will nullify the majority of voters in a state.

For the past three decades since Roe v Wade, the ability of voters to find compromises on these issues have been taken out of their hand. Now the courts will decide if the voters in the state of Oregon can decide for themselves whether to approve assisted suicide. In the past, state rights has been considered a conservative matter but now the left is claiming the mantle of states right since it is being used to pursue liberal social policy. (It could easily be argued that many social conservatives are abandoning their own belief in federalism when it doesn’t favor them.) The Wall Street Journal editorial notes “Federalism is not a left or right issue… It’s a question of freedom and good governance.” The last time a similar case reached the Court; the court concluded correctly that there was no constitutional right to assisted suicide. The late Chief Justice Rehnquist wrote “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

The debate over the Miers nomination is really a debate on the nature of the constitution. Throughout the 19th century, voters decided contentious social issues on a local level through their state legislature. Recreational use of cocaine, marijuana, alcohol; along with prostitution, gambling and abortions were regulated at a state level.

The reason the 18th amendment outlawing the production and sales of alcohol was enacted because it was believed that the Congress did not have power to prohibit alcohol by fiat. It took the Courts until 1972 to find a constitutional right to abortion. Today, the debate over gay rights has shifted to the Courts as a mean to bypass state legislature and the will of the people.

The court correct course in Gonzales v Oregon is simply state what was stated in 1997, there is no constitutional right to assisted suicide. This does not preclude state legislatures from dealing with the issue. Roe v Wade should have been decided in a similar way. If the court decides tomorrow to overturn Roe v Wade, abortion would still be legal. The only difference is that each state would regulate the abortion industry, and the right of the unborn would be balanced against that of the mother. Compromises would be reached that most Americans could live with.

Ms. Miers should simply say that there are certain issues that the judge simply don’t have the knowledge to make inform decision and are better left in the hands of the people. This would be in line of what our founding fathers thought and what Bush states that he wants in a Supreme Court justice. And most Americans can simply decide these issues in the public arena, where the issues belong in the first place.

Writer’s note: For those interested in the Wall Street Journal link, here it is.

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About Tom Donelson