THE LITMUS TEST

Well Harriet Miers did the right thing and saved the country from watching as the Senate Judiciary Committee tore into her imcompetence for the job. Now we have Samuel Alito ("Scalito") to contend with. Like John Roberts his competence seems a given, however unlike Roberts his track record is both more apparent and not as pleasing. The most questionable ruling comes as a dissent from an opinion that found that a strip-search of a ten year old girl and her mother when they were not named in a warrant but happened to be present when it was administered to a man reputed to be a drug dealer. Screws my previously stated test -because it does the opposite of expanding the individual liberties in the Bill of Rights. The fourth Amendment clearly protects people's persons from unreasonable searches and meandates that warrants must have probable cause-but how can a warrant grant probable cause to search someone who is not named (i.e. the target)in it? There was no exigency involved as the girl and her mother were detained by the officers at the scene -so how else can PC attach? Scary. And this is the guy put forth to replace O'Conner's swing vote? Yikes.

The hearings will likely center aroud questions pertaining to writings where Alito claimed to be proud to have a part in helping to weaken Roe v. Wade. There are the usual complaints from the right about the "litmus test"-abortion. I think there are a few ostensibly legit reasons why it has become a litmus test.

First is that it raises a civil rights issue for women (albeit not squarely): at what point does she lose control over the clump of cells/ organism/fetus/child that resides in her body? It would seem that the opponents of abortion are claiming that from the moment the sperm meets egg those cells are no longer her own but deserving of intervention/protection from literal outsiders. This means that women somehow have less liberty than men, in that there are some restrictions placed on women (when they attain a certain status) that men will never endure. Granted, the unique nature of the physiological gender differences creates this disparity -but that does not erase that it IS a disparity.

Second is that one's position on Roe v. Wade in particular is somewhat indicative of one's position of the central government vs. federalism issue. The problem is that if you think abortion is a constitutional issue (and w/r you think there is a constitutional right or not is irrelevent to w/r it is a constitutional ISSUE), putting the issue to the states is elevating them above the constitution as to certain constitutional rights. Understand -this trancends the side of the fence one finds oneself on re abortion: E.g. if you believe the core issue is the unborn child's right to life, life is a constitutional decision. If conversely you believe that the issue is the woman's right to control what is done to her body, that falls squarely within the 4th amendment's guarantee of a right to privacy (and let's drop the bullsh*t catch-phrase rhetoric -anyone who can read the text of the 4th amendment and come to the conclusion that it does not prevent against government interference of one's privacy is beyond reason. It's all there: "PERSONS, houses, papers and effects") so that in either case, allowing the states to individually decide demotes the constitution from paramount law to being subservient to the states re certain fundamental rights.

Finally, one's position on the abortion issue can function as a strong indicator of one's position regarding the separation of church and state. The issue of whether a life begins at conception is fundamentally a religious issue -the science is incomplete and the secular philosophy doesn't concurr with that view. (How many people who believe life begins at conception believe so out of a completely secular/scientific basis?) Therefore, if one believes that a life has begun at conception and that that life deserves the same constitutional protection as all life at later and post gestational stages, it necessarily follows that (s)he believes that in the U.S. religion can, and should, be used to mandate public policy via the statutory scheme for ALL - whether they share the religious beliefs or not.

We spend entirely too much time in this country on the abortion issue itself given its scope. However the issues it in turn raises are larger than that specific scope and that is why it has become a "litmus test". Perhaps if we stopped trying to argue those issues by cloaking them in the abortion debate and spent more time arguing about them directly we could come closer to settling them, but I'm not holding my breath.