Civics 101

Posted on April 18, 2007
Filed Under Public Policy |

I remember watching an interview with that Duke prosecutor Nifong last year where he made a point of saying that the case should go forward so that the victim can have her day in court. My reaction at the time was that a prosecutor should know that his client is not the victim; the prosecutor’s client is the People (as in his/her county, his state, or at the federal level, the entire country). In other words, the People also being the government, in our legal system the prosecutor’s client is the government.

Furthermore, the victim doesn’t get a "day in court" as the presumption of innocence that frames our entire judicial system dictates that the defendant is the one who goes to court. The victim, as any first year law student can tell you, is merely a witness to the complaint filed by the prosecutor.

This is his job and he doesn’t understand something as basic as who the client he represents is?

Today I read this statement from Barack Obama:

"I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women."

The statement was in response to the Supreme Court decision upholding the federal ban on partial birth abortions, a passionate topic from either side of the debate. I’ll reserve judgement on the issue, which I do have an opinion on but is not relevant to the reason for this post. Let’s parse Obama’s statement:

"I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose,…"

Okay, I can go with that. In fact I agree with Obama’s concern here and consider that the ruling runs counter to long held Federalism principles. However, Obama is on a slippery slope here because one can’t embrace Federalism just when it’s convenient, so if his argument is that the Federal government is empowering the states with this law and ultimate ruling, then he would have to agree that laws that limit state’s ability to impose restrictions are equally onerous in priniciple.

"…and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women”

This is where Obama is flat out wrong. Roe v. Wade is a legal decision handed down by the Supreme Court and is therefore the ultimate precedent, and while it has much the same effect as law it is not "established federal law". A federal law, which I guess is the precursor to "established federal law"(?), is a measure that moves through the Congress and is signed into law by the President. Remember Schoolhouse Rock’s "I’m Just a Bill"?

I’ll skip the "equal rights for women" part of the comment because I have no idea what he could be trying to suggest, unless he believes that men can get abortions unhindered.

A court decision, even a Supreme Court decision, can be made null through the constitutional process of law making, providing those laws don’t violate our Constitution. If anything Roe v. Wade is the antithesis of established federal law because lawmakers, our elected representatives, never had a hand in making it.

I suspect that what Obama was trying to suggest is that Roe v. Wade is "established precedent" meaning it is not subject to debate by the broad mainstream of American society. However, Obama seems like a very smart man so I would be surprised if he ever said anything that he didn’t intend to say. With that in mind, is it too much to ask that elected and appointed government officials, in other words the people who should understand these things, correctly state the processes of our system of government?

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