I had to give Fred Thompson credit: he gave an answer of what to do about same-sex marriage that was a lot more geared to moderate general election voters than to the Republican base. Of course, he's neck-and-neck with Rudy "Drag Queen with Gay Roommates" Giuliani in the primary polls, so perhaps he's figured that a sane position on social issues isn't the kiss of death these days in the GOP. Harkening back to his claimed federalist values, he avoided Romney's kneejerk reaction to Iowa's teetering toward same-sex marriage. Instead, according to the AP, "Thompson favors a constitutional amendment that bars judges from legalizing gay marriage, but also leaves open the door for state legislatures to approve the practice." This is precisely the approach that I recommended when Bush was hyping the Federal Marriage Amendment last year: if what really bothers you are activist judges, not homosexuals, then do something that blocks the former from inappropriate exercises of power rather than blocking the latter from democratically working their way to a simple majority that will allow them at least a facsimile of marriage. So, props to Thompson for staking out a position that has a principle rather than an animus behind it.
Federalism seems to be less of a concern for Thompson when it comes to that other major conservative issue. He has opposed a constitutional amendment banning all abortion on the grounds that the issue should be up to the states, but he voted for the prohibitions on "partial birth" abortions each time they came up while he was in Congress. Evidently there's a particular kind of abortion that oughtn't be left to the states. This is inconsistent constitutional theory. The whole point of amending the federal constitution in these post-incorporation days is to avoid leaving issues up to the states. If you believe, as many pro-lifers do, that abortion is murder (the premeditated killing of a person), then the Constitution ought to be amended to explicitly state the protected personhood of fetuses; the matter should be no more left to the states than the citizenship and voting rights of African Americans. There is no contradiction between federalism and amending the Constitution, particularly when all prior federal amendments have been passed through state legislatures.
With regard to Congress's place in regulating abortion procedures, Justice Thomas hinted in voting to uphold the PBA Ban of 2003 that had its challengers made an argument that Congress lacked the power under interstate commerce to pass the legislation, he might have voted to void it. I'm rather convinced that he was just being a tease, but it must be said for Thomas that whatever the oddities of his First Amendment beliefs, he's consistently in favor of retrenching commerce clause power. In voting for similar legislation, however, Thompson clearly is not, and he has hardened his position on abortion since his 1994 Senate run:
In a questionnaire that he answered during his successful 1994 Senate campaign in Tennessee, Mr. Thompson or his campaign staff checked a box stating that he believed abortion should be legal under any circumstance during the first three months of a pregnancy. In a televised debate the same year, Mr. Thompson appeared to tell the moderator that he personally disagreed with outlawing abortion. "Should the government come in and criminalize letís say a young girl and her parents and her doctor?" Mr. Thompson said. "I think not." In addition, the Gannett News Service has reported that another questionnaire submitted during Mr. Thompsonís 1994 campaign contained a handwritten note that stated: "I do not believe abortion should be criminalized. This battle will be won in the hearts and souls of the American people."Since then, Thompson has given up on the American people's hearts and minds and turned on the young girl's doctor, though she and her parents are still safe.
Republican presidential hopeful Fred Thompson said Friday that women should face no criminal penalties for having one during the first three months of pregnancy. Authorities "can do whatever they want to with abortion doctors, as far as I'm concerned," the former Tennessee senator said. But "if it comes down to giving criminal sanctions to a 19-year-old girl and her mama, I'm against that."The "mama" exception is a very peculiar one, given that mama's not pregnant and oughtn't be helping -- or worse, pushing -- her daughter toward an abortion. Of course, many parents do pressure their daughters into having abortions, whether out of sincere concern that childbirth will endanger her health or her future, or out of self-interested fear that they will be embarrassed in their community or have to help raise the resulting baby. But if abortion is wrong, surely we shouldn't condone parents' assisting their children in committing such a wrong.
There's a kind of radical feminism embedded in Thompson's light remark about "a 19-year-old girl and her mama," contrasted with the "abortion doctors." Liberal feminists like Justice Ginsburg try to push the law toward treating women equally, not toward giving them a special status. Such a seeming favor tends to bite back the recipient, like the automatic exemption from jury duty once given to women that caused them to be underrepresented on juries, and the continuing exemption from Selective Service and combat duty. A more radical feminist perspective, however, dismisses de jure equality as a distraction from the fact of women's ongoing social, political and economic subjugation to men (much as Marxist theory dismisses the modern welfare state as an impediment, not a way station, to the revolution). Indeed, given that de facto inequality, radical feminists theorize that legal equality hurts women by forcing them into a pretense that they are not disadvantaged and in different situations than men. One of the more extreme examples I have seen of this is Susan Brownmiller's defense of the false rape accusers in the Scottsboro case, on the ground that because the women were being oppressed by white males, they needed to be able to cry rape on black boys.
I doubt that Thompson is going on much more than his gut about what voters want to hear, but he sounds weirdly reminiscent of Robin West, of all people. In her essay "Jurisprudence and Gender," West argued that modern legal theory is inherently masculine because it assumes that human beings are distinct from one another, when in fact women are connected to other human beings, most literally through pregnancy. West is infamous in some quarters for taking the concept of fetus as human being so far as to describe it as metaphorically invading an unwilling woman's body: "The argument that the right to abortion mirrors the right to self defense falls on deaf ears for a reason; the analogy is indeed flawed. The right of self defense is the right to protect the body's security against annihilation liberally understood, not invasion. But the danger an unwanted fetus poses is not to the body's security at all, but rather to the body's integrity."
If Robin West were arguing Thompson's position on the criminalization of abortion, she might say that the dread of invasion can only be women's, so that the pregnant 19-year-old and her mama (intimately connected to the pregnant woman) ought not suffer under legal penalties for what they do to remove that harm. But the abortion doctor is not part of any intimate relationship to which the fetus poses a threat of intrusion, so he or she could be penalized.
Republican Fred, Radical Feminist.