Maybe she believes there is both an inherent and an implicit constitutional right to privacy, but doesn't feel it applies in the case of abortion.

Maybe she also believes that people being interviewed are obligated not to explain surprising combinations of views after they express them.

Maybe she agrees with that right-wing blogger who said he was confident that if something happened to McCain then Palin would immediately appoint someone competent as vice president and resign. Maybe that should be a followup question.

The right to privacy was not construed specifically for the Roe decision.

Several cases formed the foundation before Roe came along, with Griswold v. Connecticut being the most important. (Ensuring the right for married couples to buy condoms.)

It's quite possible to believe in a right to privacy without agreeing with Roe.

Just to get this straight. Sarah Palin believes in an individual right to privacy, which is not only the basis for the Roe decision, but was constructed specifically for the Roe decision.

Ezra, don't forget Griswold v. Connecticut. I'm pretty sure that's where privacy made its debut.

Is Katie Couric eligible for the Congressional Medal of Honor?

I agree in principle with all this, but do want to join in the criticism of the idea that the right to privacy came from Roe.

It is quite possible to believe (as most anti-Roe people will concede) that there ought to be *some* right to privacy, but to still believe that the penumbra doesn't extend to the decision of abortion. Particularly if you believe that the fetus is a person (as many of them do) - it's not even remotely difficult to explain why privacy would not permit you to kill a "person."

Not that Palin knew anything about any of this, but if we're going to make fun of her lack of understanding it's best to keep the facts straight.

To be fair, the right to privacy was only most clearly articulated in support of Roe. It also covers a number of things that that conservatives like, such being able to home-school your children.

Palin, of course, had no idea about any of that.

Isn't the important point here that many conservatives have been battling the right to privacy for some time, rather than the extent to which it's the cornerstone of Roe?

If only Hugh Hewitt had asked her this question, I'm sure she would have done much better.

Quite frankly, I like the Tina Fey version of Palin much, much better.

The Supreme Court actually started construing a right to privacy in the 14th amendment's liberty clause in the 20s, with the likes of Meyer v. Nebraska, Bartels v. Iowa, Pierce vs. Society of Sisters.

It, of course, didn't hit the big leagues until Griswold, Stanley v. Georgia, Eisenstadt v. Baird, and Roe.

Um, privacy is protected in the 3d Amendment (quartering was essentially a sovereign's way of spying on enemies); the 4th Amendment (protection against unreasonable searches and seizures) and the 5th Amendment (protecting the natural right to silence). It was not invented by the Supreme Court, despite their having distorted it all out of proportion in Roe.

Biden, a trained lawyer, gave a less accurate answer than Palin, who is not a lawyer. He describes its trimester system in a vacuum, implying that it is somehow operative (it never was in the terms he describes, and no longer exists after Casey). He also utterly and implausibly claims that there's some consensus around his idealized version of Roe's holding. That is highly debatable, but again, he utterly misdescribes the law of abortion in this country in terms that were never operative under Roe or its progeny.

@Bill:

I'm not sure how you divined Biden's meaning to be that he believed the trimester system is still in use by the courts — he was specifically asked a question about Roe v. Wade, and he answered the question by talking about Roe v. Wade. Roe v. Wade did, in fact, outline a fairly rigid trimester system as an approximate estimator of fetus viability. That was altered by PP v. Casey, as medical advances made fetus viability a possibility earlier than was the case at the time of Roe. Thus, the court updated the timing outlined by Roe, but did not alter its intent, which was to restrict the use of abortion except in cases where the health of the mother was at risk after the fetus reached viability.

He wasn't asked about Casey, he was asked about Roe, and he answered the question in relation to Roe. In addition, Casey (to the chagrin of conservatives) overtly references stare decisis and upholds the fundamentals of Roe, altering what it felt should be altered in response to medical advances. (It also removed abortion from strict scrutiny, but I don't think that's relevant.)

Moving on to your first point, the reason we are expressing surprise at Palin's embrace of a constitutional right to privacy is that conservatives have been insisting for 35+ years that there is no right to privacy to be found in the constitution. They don't split hairs over whether Roe "distorted" an existing right to privacy — they argue that it does not exist. That Palin would take a position so seriously at odds with that of her base is what is surprising, not the actual assertion, which I, and apparently you, agree with.

Quite frankly, I like the Tina Fey version of Palin much, much better.

The Sara Benincasa version, established before she'd even spoke to the country at large, is also much more charming than the real thing.

He also utterly and implausibly claims that there's some consensus around his idealized version of Roe's holding.

I didn't see that at all, for the reasons jbb outlined. I think he pretty well elaborated the point that Roe's trimester model represented an early model of establishing state interest, and that it mapped to a heterogenous polity with sentiments that lie well between 'anything goes' and 'lock 'em up for murder'.

Isn't the important point here that many conservatives have been battling the right to privacy for some time, rather than the extent to which it's the cornerstone of Roe?

Ding ding ding. Rick Santorum thought that Griswold was a slippery-slope ruling in the infamous 'man-on-dog' interview:

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out.

But Palin's answer, muddled as it was, reflected Alaska's curious combination of libertarianism, welfare-statism and social conservatism, which is utterly heterodox by the standards of Phyllis Schafly / TownHall conservatism.

I certainly dislike Palin, but if you've ever read the constitution or studied what the Founding Fathers intended you can't really argue that it gives the federal government priority over the states. On the contrary. The union was clearly designed to be a union of states, not a central government. But Lincoln effectively overturned the constitution through the use of violence and I guess there's no going back. Hopefully the union won't stand much longer and we can reestablish liberty and freedom and democracy.

The union was clearly designed to be a union of states, not a central government.

It was also intended to have horses and slaves, looked after in that order. If you want to go back to that, I'm sure there's somewhere that'll fit your bill.

Also missing from what the Founding Fathers intended: Alaska. Now go and wank off to your collection of Ron Paul speeches.

Just to get this straight. Sarah Palin believes in an individual right to privacy, which is the basis for the Roe decision. But she disagrees with the decision. Because she thinks individual states should be able to abrogate a Constitutional right if they so choose.

Wrong. Healthcare wonks like you shouldn't be allowed to comment on constitutional law. There are two ways to get out of this conundrum:

1) there's a right to privacy, but it doesn't extend all the way out to abortion (rather, it just covers things like sex - no antisodomy laws - and contraception), or

2) abortion is covered by the right to privacy, but the state has a compelling interest in protecting fetal life, if it asserts such an interest.

Most conservatives would go with (1); Alito and Roberts, for instance, believe that Griswold is good law, but would probably vote to overturn Roe if the occasion ever arose.

@jbb,

I suppose it is possible that asking candidates about Roe is asking them about historical niceties that our now nullities in the law. Do you think that's what Katie thought? Don't you think that what they are asking about is whether Roe should be overturned or not? I certainly do, and that's why having a lalaland conversation about trimesters is utterly beside the point. Nor was his answer accurate as an historical description of Roe, unless he means that Roe's dicta but not its holding reflected this alleged consensus.

Second, as others here have noted, conservatives were not upset when Roberts and Alito acknowledged the right to privacy inherent in the Constitution, and rightly so for the reasons I outline above. To wit, it's unmistakably there.

So there's no gotcha moment on Palin here, however unsteady the nonlawyer is in her discussion of the law. Meanwhile, Biden can't remember the name of Morrisson, the case that overturned his own law, and he, like Sen. Obama, teaches a Con law course.

Hilarious.

Palin's inability to name a Supreme Court case she doesn't like doesn't seem all that damning. Maybe she was just nervous and couldn't think of one on the spot or whatever.

What is worse is the fact that she endorses a right to privacy in the Constitution, but then says that it should be up to the states to decide whether to respect that right. This would seem to turn the structure of our government on its ear.

Is it really surprising that she is not well versed in constitutional law or the basis of higher court rulings? I am less concerned with this than other questions she has been asked to answer, for a couple of reasons:

A) If you asked most lawmakers in congress, they would provide you absolutely as ridiculous an answer as provided by Palin, but just in a more slick package. Just watch Hardball on any given night.

B) A detailed knowledge of constitutional law is helpful, but to me not nearly as important as intellectual curiosity for a leader in my book. I bet you most non-legal professional politicians (i.e.- businessmen and others) would not be able to provide you with much of a detailed analysis as to Supreme Court rulings and their underpinnings, yet they can make effective rulers. All it shows if that your specific level of interest happened to be related to constitutional law. I agree, that this is important, since laws need to fit within the framework of the constitution.

However, all this means is that proposals by people not as well versed in constitutional law will likely rely more on their in-house legal team to determine the extent to which their overall policy decisions fit within the framework of the constitution. In the case of Roe v. Wade, what matters more to me is not that she has somewhat inexplicable contradictory opinions, but that she clearly is against the right of a woman to choose. And in those events, clearly would support justices who were in favor of reversing that decision and returning it back to the states.

As I stated earlier, my biggest issue with Palin is her clear lack of worldliness and general interest in anything not parochial to her immediate surroundings. If Palin was intellectually curious, it would provide me some comfort that even if she lacks specific skill sets, she would have the self-motivational wherewithal to learn or obtain a better base-line level of knowledge in that area, be it constitutional law, domestic issues or foreign policy issues. But Palin is someone who has clearly never been on to want to learn for learning's sake. It is why in part she is still having trouble answering these questions. Because her lack of intellectual curiosity results in not learning the issues, but memorizing the facts to pass the test. And when all you do is learn facts, you never get the bigger picture or obtain any context as to how what your learning fits into the bigger picture.

This is even more troubling given that we are facing a crisis where mistakes were made because policies and regulations (or lack thereof) were implemented without understanding how these decisions may impact the other spheres outside of the immediate area they impacted. For example, our deregulation of the financial services industry. In a vacuum, it seemed reasonable. But suddenly, we are seeing how such policies impact the very livelihood of many of America's small businesses.

My worry about Palin is that she will never be able to draw such connections as to potential unintended consequences of her actions, as she can only see 10 feet ahead, when what we need is someone who has the ability to see far ahead and make judgments based on not just the immediate but long-term impacts of such decisions.

Right Jeebus. She actually sounded just fine right up until then (even thought I disagree with here.)

What I don't get though, is...she couldn't just say no? Or say she can't recall at this time? She has some mucho political chops to hone. Given that, why would I believe her to be capable of being the presiding officer of the Senate?