on the inside
October 17, 2005 8:09 AM Subscribe
On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers's close friends--both sitting judges--said during the call that she would vote to overturn Roe.
Mr. Dobson says he spoke with Mr. Rove on Sunday, Oct. 2, the day before President Bush publicly announced the nomination. Mr. Rove assured Mr. Dobson that Ms. Miers was an evangelical Christian
This is wrong on so many levels its disgusting. And whatever happened to this whole notion of "not legislating from the bench?" Roe is the law now - I would think changing that law would be "legislating from the bench".
posted by H. Roark at 8:22 AM on October 17, 2005
This is wrong on so many levels its disgusting. And whatever happened to this whole notion of "not legislating from the bench?" Roe is the law now - I would think changing that law would be "legislating from the bench".
posted by H. Roark at 8:22 AM on October 17, 2005
Good thing I don't have a uterus!
Glad I can still tell others what they can do with theirs.
posted by wakko at 8:26 AM on October 17, 2005
Glad I can still tell others what they can do with theirs.
posted by wakko at 8:26 AM on October 17, 2005
I certainly hope that she does it.
An outright overturn of Roe (especially if followed by federal legislation) would mobilize millions of people who will otherwise sit and watch it die the death of a thousand papercuts.
I can't think of a better way to reinvigorate the Democrats.
posted by I Love Tacos at 8:27 AM on October 17, 2005
An outright overturn of Roe (especially if followed by federal legislation) would mobilize millions of people who will otherwise sit and watch it die the death of a thousand papercuts.
I can't think of a better way to reinvigorate the Democrats.
posted by I Love Tacos at 8:27 AM on October 17, 2005
Overturning Roe outright will destroy the Republican party, btw.
posted by wakko at 8:27 AM on October 17, 2005
posted by wakko at 8:27 AM on October 17, 2005
I hope her nomination is withdrawn. There are plenty more qualified people to be in that post. For what it's worth: Justice Hecht, who appears to be the chief water-carrier for Miers, is a very qualified individual who would be a good Supreme Court Justice. Every time I hear his name in conjunction with her name, it serves as a reminder how there are better qualified people to be on the Court.
I find the focus on Roe to be damaging to the process. As a judicial matter, her opinion on Roe shouldn't be any more important than her opinion on Glenshaw Glass or some other less controversial case. By focusing on such a wedge issue, it just politicizes the process. She should not be expressing her opinions on how she would rule in future cases; that is an express violation of the canon of judicial ethics. And they shouldn't have proxies expressing her opinions for her in an ill-concieved attempt at circumventing the canon of judicial ethics.
I hope she is withdrawn as the confirmation process will do much harm.
posted by dios at 8:28 AM on October 17, 2005
I find the focus on Roe to be damaging to the process. As a judicial matter, her opinion on Roe shouldn't be any more important than her opinion on Glenshaw Glass or some other less controversial case. By focusing on such a wedge issue, it just politicizes the process. She should not be expressing her opinions on how she would rule in future cases; that is an express violation of the canon of judicial ethics. And they shouldn't have proxies expressing her opinions for her in an ill-concieved attempt at circumventing the canon of judicial ethics.
I hope she is withdrawn as the confirmation process will do much harm.
posted by dios at 8:28 AM on October 17, 2005
Let's appoint a Bush family lawyer to the highest court in the land because she would vote to overturn one decision! Whoopie!
Hey, and let's slide down the firepole into the fiery realms of chaos while we do it! It'll be fun!
posted by JHarris at 8:28 AM on October 17, 2005
Hey, and let's slide down the firepole into the fiery realms of chaos while we do it! It'll be fun!
posted by JHarris at 8:28 AM on October 17, 2005
And whatever happened to this whole notion of "not legislating from the bench?"
Doing the lord's work isn't really legislating, y'know. More like using "common sense".
posted by Thorzdad at 8:29 AM on October 17, 2005
Doing the lord's work isn't really legislating, y'know. More like using "common sense".
posted by Thorzdad at 8:29 AM on October 17, 2005
Anyone with half a brain has already figured out that this was the only* qualification that mattered to GW when nominating her.
*If by "only" I mean: Added to that the fact that she could come in handy in saving his and his *other* cronies butts when the doo-doo hits the fan (as it eventually will).
posted by spock at 8:29 AM on October 17, 2005
*If by "only" I mean: Added to that the fact that she could come in handy in saving his and his *other* cronies butts when the doo-doo hits the fan (as it eventually will).
posted by spock at 8:29 AM on October 17, 2005
One quick point on Roe which seems to be neglected in any discussion of it: an over-turning of Roe does not mean abortions are illegal. The law would return to the status it was from the nascent stages of this Country until Roe: that is, the states will be free to regulate abortion as they see fit. The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
The fundamental problem with Roe has very little to do with abortion and everything to do with the un-encumbered expansion of judicial power. Overturning Roe does not equal banning abortion.
posted by dios at 8:31 AM on October 17, 2005
The fundamental problem with Roe has very little to do with abortion and everything to do with the un-encumbered expansion of judicial power. Overturning Roe does not equal banning abortion.
posted by dios at 8:31 AM on October 17, 2005
Overturning Roe does not equal banning abortion.
No, of course not. But it's the key stumbling block preventing a lot of states from doing it.
posted by wakko at 8:34 AM on October 17, 2005
No, of course not. But it's the key stumbling block preventing a lot of states from doing it.
posted by wakko at 8:34 AM on October 17, 2005
The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
For about 30 seconds until the red states call an emergency legislative session to make it illegal. Then its off to a long battle in the courts on the state level...
posted by SirOmega at 8:42 AM on October 17, 2005
For about 30 seconds until the red states call an emergency legislative session to make it illegal. Then its off to a long battle in the courts on the state level...
posted by SirOmega at 8:42 AM on October 17, 2005
I'm a Canadian man, and I find this terrifying.
I'm still not 100% convinced the U.S. won't invade us for our oil/lumber/pot-smoking/abortions/gay-marrying. Because Jesus wants them to.
posted by S.C. at 8:46 AM on October 17, 2005
I'm still not 100% convinced the U.S. won't invade us for our oil/lumber/pot-smoking/abortions/gay-marrying. Because Jesus wants them to.
posted by S.C. at 8:46 AM on October 17, 2005
But it's the key stumbling block preventing a lot of states from doing it.
posted by wakko at 10:34 AM CST on October 17
We leave a lot of things to the states: capital punishment, euthanasia, criminal laws, marriage laws, family laws, health laws. These are questions of policy. All of these things are "important" and they are all province of the states. Abortion shouldn't be any different from a constitutional perspective.
Your prediction regarding what will happen if states are free to make their own laws is balanced against the reality of having pernicious Supreme Court precedence. The way our constitutional framework exists, the Supreme Court should be engaged in making policy. State are supposed to be labatories of democracy and are supposed to have rights to make decisions for their people. It is a fundamental tenet of our federalist constitutional structure.
Why should abortion be so much different from other issues that it deserves to be federally protected from democratic imperative by a horrible act of judicial fiat?
posted by dios at 8:49 AM on October 17, 2005
posted by wakko at 10:34 AM CST on October 17
We leave a lot of things to the states: capital punishment, euthanasia, criminal laws, marriage laws, family laws, health laws. These are questions of policy. All of these things are "important" and they are all province of the states. Abortion shouldn't be any different from a constitutional perspective.
Your prediction regarding what will happen if states are free to make their own laws is balanced against the reality of having pernicious Supreme Court precedence. The way our constitutional framework exists, the Supreme Court should be engaged in making policy. State are supposed to be labatories of democracy and are supposed to have rights to make decisions for their people. It is a fundamental tenet of our federalist constitutional structure.
Why should abortion be so much different from other issues that it deserves to be federally protected from democratic imperative by a horrible act of judicial fiat?
posted by dios at 8:49 AM on October 17, 2005
Obviously that sentence should say:
The way our constitutional framework exists, the Supreme Court should not be engaged in making policy.
posted by dios at 8:50 AM on October 17, 2005
The way our constitutional framework exists, the Supreme Court should not be engaged in making policy.
posted by dios at 8:50 AM on October 17, 2005
We leave a lot of things to the states: capital punishment, euthanasia, criminal laws, marriage laws, family laws, health laws.
Subject to the requirements of the United States Constitution, of course.
posted by monju_bosatsu at 8:52 AM on October 17, 2005
Subject to the requirements of the United States Constitution, of course.
posted by monju_bosatsu at 8:52 AM on October 17, 2005
Doing the lord's work isn't really legislating, y'know. More like using "common sense".
But the bible makes it crystal clear that only God is allowed to judge sin. So you guys actually are God, then? Boy that's some Christian humility you've got.
posted by all-seeing eye dog at 8:59 AM on October 17, 2005
But the bible makes it crystal clear that only God is allowed to judge sin. So you guys actually are God, then? Boy that's some Christian humility you've got.
posted by all-seeing eye dog at 8:59 AM on October 17, 2005
Isn't abortion illegal already in quite a few states with pre-Roe laws? Wouldn't overturning Roe v. Wade render it illegal in those states automatically?
posted by Alison at 9:00 AM on October 17, 2005
posted by Alison at 9:00 AM on October 17, 2005
The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
It's possible, sure.
In the same sense that it's possible that Alabama and Texas might pass laws tomorrow legalizing same-sex marriage, banning the death penalty, and encouraging the hiring of weed-reeking communist pedophiles as public school teachers, while at the same time Vermont passed a law making the sale of organic produce a capital offense and San Francisco banned homosexuals from public office.
In other words, it's not possible at all for any sane definition of the word.
And we don't leave those policies in your list to the states. The application of the death penalty and the procedures by which it is used are under the strict supervision of the federal courts. State marriage laws are restricted by the federal Constitution, as Virginia discovered. Criminal procedures are strongly regulated by the federal courts.
Why should abortion be so much different from other issues
Because banning abortion uses the power of the state to compel a woman to bear and deliver a child at great risk to herself and against her own will.
posted by ROU_Xenophobe at 9:01 AM on October 17, 2005
It's possible, sure.
In the same sense that it's possible that Alabama and Texas might pass laws tomorrow legalizing same-sex marriage, banning the death penalty, and encouraging the hiring of weed-reeking communist pedophiles as public school teachers, while at the same time Vermont passed a law making the sale of organic produce a capital offense and San Francisco banned homosexuals from public office.
In other words, it's not possible at all for any sane definition of the word.
And we don't leave those policies in your list to the states. The application of the death penalty and the procedures by which it is used are under the strict supervision of the federal courts. State marriage laws are restricted by the federal Constitution, as Virginia discovered. Criminal procedures are strongly regulated by the federal courts.
Why should abortion be so much different from other issues
Because banning abortion uses the power of the state to compel a woman to bear and deliver a child at great risk to herself and against her own will.
posted by ROU_Xenophobe at 9:01 AM on October 17, 2005
I'm still not 100% convinced the U.S. won't invade us for our oil/lumber/pot-smoking/abortions/gay-marrying. Because Jesus wants them to.
That would never happen. What would they do with the new states that are pure Democrat or further left? If you're a liberal democracy you're safe because you're more contagious than bird flu.
posted by srboisvert at 9:04 AM on October 17, 2005
That would never happen. What would they do with the new states that are pure Democrat or further left? If you're a liberal democracy you're safe because you're more contagious than bird flu.
posted by srboisvert at 9:04 AM on October 17, 2005
I think Miers is toast. Conservatives were already lining up to bail on the nomination, just waiting for someone to go first. This news may drive some conservatives back into the fold (I wonder if it isn't an administration leak for that reason?). But it will galvanize Democrats against the nomination. Added bonus: It makes Dobson look like a lying weasel.
And yes, overturning Roe would tear the Republican Party apart. It is on the verge of civil war already.
posted by LarryC at 9:10 AM on October 17, 2005
And yes, overturning Roe would tear the Republican Party apart. It is on the verge of civil war already.
posted by LarryC at 9:10 AM on October 17, 2005
We leave a lot of things to the states: capital punishment, euthanasia
Last I checked the Feds were trying to use the "regulation of drugs" by the Federal government to overturn Oregon's position on euthanasia.
posted by Secret Life of Gravy at 9:11 AM on October 17, 2005
Last I checked the Feds were trying to use the "regulation of drugs" by the Federal government to overturn Oregon's position on euthanasia.
posted by Secret Life of Gravy at 9:11 AM on October 17, 2005
And we don't leave those policies in your list to the states. The application of the death penalty and the procedures by which it is used are under the strict supervision of the federal courts. State marriage laws are restricted by the federal Constitution, as Virginia discovered. Criminal procedures are strongly regulated by the federal courts.
Here we are getting into the hyper-technical constitutional point about requirements and proscription.
The federal constitution doesn't require that capital punishment be legal in a state; it limits the application. The same is true with marriage laws: the federal constitution doesn't require that marriage exist in any state for anyone; it controls the limits placed upon the franchise. Criminal procedure is limited, as you noted, but criminal laws are not. Any state could decriminalize or criminalize the carrying of wire cutters within 50 feet of a barbed wire fence. It is the application of that law that is regulated.
Likewise, the federal constitution doesn't require that abortion be legal in a state; that was an act of the Supreme Court. If abortion is legal or illegal in a state, the federal government can regulate it. (E.g., it could strike down a rule that abortion is only available to Asians, for instance).
Because banning abortion uses the power of the state to compel a woman to bear and deliver a child at great risk to herself and against her own will.
posted by ROU_Xenophobe at 11:01 AM CST on October 17
This may be true, but this is a policy argument as opposed to a constitutional argument, and therein lies the flaw of the rhetoric on both sides of the debate. It is entirely reasonable to be against Roe vs. Wade and support abortion. The issue of the rightness of the policy is separate and distinct from the problem with the opinion, which was my original point. As a constitutional matter, the opinion should not be given any more treatment than say the Glenshaw Glass opinion. By constantly focusing on it using policy arguments, the effect is that the Court is viewed as a political body as opposed to a jurisprudential body.
posted by dios at 9:16 AM on October 17, 2005
Here we are getting into the hyper-technical constitutional point about requirements and proscription.
The federal constitution doesn't require that capital punishment be legal in a state; it limits the application. The same is true with marriage laws: the federal constitution doesn't require that marriage exist in any state for anyone; it controls the limits placed upon the franchise. Criminal procedure is limited, as you noted, but criminal laws are not. Any state could decriminalize or criminalize the carrying of wire cutters within 50 feet of a barbed wire fence. It is the application of that law that is regulated.
Likewise, the federal constitution doesn't require that abortion be legal in a state; that was an act of the Supreme Court. If abortion is legal or illegal in a state, the federal government can regulate it. (E.g., it could strike down a rule that abortion is only available to Asians, for instance).
Because banning abortion uses the power of the state to compel a woman to bear and deliver a child at great risk to herself and against her own will.
posted by ROU_Xenophobe at 11:01 AM CST on October 17
This may be true, but this is a policy argument as opposed to a constitutional argument, and therein lies the flaw of the rhetoric on both sides of the debate. It is entirely reasonable to be against Roe vs. Wade and support abortion. The issue of the rightness of the policy is separate and distinct from the problem with the opinion, which was my original point. As a constitutional matter, the opinion should not be given any more treatment than say the Glenshaw Glass opinion. By constantly focusing on it using policy arguments, the effect is that the Court is viewed as a political body as opposed to a jurisprudential body.
posted by dios at 9:16 AM on October 17, 2005
Pot smoking? Canada? Fire up the humvees boys we're headin North at 4:20!!
If we have our way, Canada will do it's duty... the one thing that it can do to help the world...
Find some way to finally make Strange Brew 2!!!
posted by AspectRatio at 9:20 AM on October 17, 2005
If we have our way, Canada will do it's duty... the one thing that it can do to help the world...
Find some way to finally make Strange Brew 2!!!
posted by AspectRatio at 9:20 AM on October 17, 2005
I Love Tacos: I certainly hope that she does it.
An outright overturn of Roe (especially if followed by federal legislation) would mobilize millions of people who will otherwise sit and watch it die the death of a thousand papercuts.
I can't think of a better way to reinvigorate the Democrats.
wakko: Overturning Roe outright will destroy the Republican party, btw.
Yes. That's why she won't vote to overturn it and Rove and Co. know that, regardless of what they tell Dobson et. al. She may even get a call from the super cool Mr. Bush should the case come up (telling her what she thinks about the issue).
There is one caveat: If the country keeps going like this, 20 years down the road we'll have theocracy. Then, all bets off. Until then, the GOP does not want Roe overturned. That way, they can continue use it as a wedge issue. After all, if it's overturned and the country continues to slide in so many areas, they can't blame the godless liberals quite as much.
spock: Anyone with half a brain has already figured out that this was the only* qualification that mattered to GW when nominating her.
*If by "only" I mean: Added to that the fact that she could come in handy in saving his and his *other* cronies butts when the doo-doo hits the fan (as it eventually will).
You a re correct, sir/madam.
Dios: The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
HAHAHA! Good one.
Dios: The fundamental problem with Roe has very little to do with abortion and everything to do with the un-encumbered expansion of judicial power. Overturning Roe does not equal banning abortion.
HAHAHA. Stop it Dios! You killing me! Where do you come up with this stuff? We all what Roe v. Wade is about. It's about Jesus. You know, Jesus, the real president of the United States (wink).
S.C.: I'm a Canadian man, and I find this terrifying.
I'm still not 100% convinced the U.S. won't invade us for our oil/lumber/pot-smoking/abortions/gay-marrying. Because Jesus wants them to.
As well you should be. I suggest you make contingency plans.
posted by a_day_late at 9:28 AM on October 17, 2005
An outright overturn of Roe (especially if followed by federal legislation) would mobilize millions of people who will otherwise sit and watch it die the death of a thousand papercuts.
I can't think of a better way to reinvigorate the Democrats.
wakko: Overturning Roe outright will destroy the Republican party, btw.
Yes. That's why she won't vote to overturn it and Rove and Co. know that, regardless of what they tell Dobson et. al. She may even get a call from the super cool Mr. Bush should the case come up (telling her what she thinks about the issue).
There is one caveat: If the country keeps going like this, 20 years down the road we'll have theocracy. Then, all bets off. Until then, the GOP does not want Roe overturned. That way, they can continue use it as a wedge issue. After all, if it's overturned and the country continues to slide in so many areas, they can't blame the godless liberals quite as much.
spock: Anyone with half a brain has already figured out that this was the only* qualification that mattered to GW when nominating her.
*If by "only" I mean: Added to that the fact that she could come in handy in saving his and his *other* cronies butts when the doo-doo hits the fan (as it eventually will).
You a re correct, sir/madam.
Dios: The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
HAHAHA! Good one.
Dios: The fundamental problem with Roe has very little to do with abortion and everything to do with the un-encumbered expansion of judicial power. Overturning Roe does not equal banning abortion.
HAHAHA. Stop it Dios! You killing me! Where do you come up with this stuff? We all what Roe v. Wade is about. It's about Jesus. You know, Jesus, the real president of the United States (wink).
S.C.: I'm a Canadian man, and I find this terrifying.
I'm still not 100% convinced the U.S. won't invade us for our oil/lumber/pot-smoking/abortions/gay-marrying. Because Jesus wants them to.
As well you should be. I suggest you make contingency plans.
posted by a_day_late at 9:28 AM on October 17, 2005
Here we are getting into the hyper-technical constitutional point about requirements and proscription.
There's nothing remotely hyper-technical about it. States aren't free to set whatever death penalty and marriage laws they desire, ergo these policies are not "up to" the states. States can regulate punishment within the guidelines of the federal Constitution. States can regulate marriage within the guidelines of the federal Constitution. States can regulate abortion within the guidelines of the federal Constitution.
posted by ROU_Xenophobe at 9:33 AM on October 17, 2005
There's nothing remotely hyper-technical about it. States aren't free to set whatever death penalty and marriage laws they desire, ergo these policies are not "up to" the states. States can regulate punishment within the guidelines of the federal Constitution. States can regulate marriage within the guidelines of the federal Constitution. States can regulate abortion within the guidelines of the federal Constitution.
posted by ROU_Xenophobe at 9:33 AM on October 17, 2005
It's clear today (10.17.05) that ol' Harriet will vote to overturn Roe v Wade. CNN had a story earlier today to the effect that she had sent a memo to that effect. Plus the whole "evangelical Christian" thing. Given this, I believe she will be defeated by Dems + angry conservative Repubs...which is why Bush is trotting out the Texas judges today.
posted by WildThang at 9:33 AM on October 17, 2005
posted by WildThang at 9:33 AM on October 17, 2005
a horrible act of judicial fiat
The horrible acts of judicial fiat go both ways, don't they? See, e.g. Bush v. Gore 531 U.S. 98 (2000) (holding, inter alia that the Equal Protection Clause(!) of the Fifth amendment as incorporated (wonder how HM feels about that) through the Fourteenth federally guarantees universal standards of vote re-counting, but not counting) (emphasis, snarky editorializing and sloppy blue-booking added)
It's just a question of whose fiats you like best. By no means does the left own judicial activism.
And related:
Does the pres want strict constructionists? (Of course he doesn't.)
I can really only think of one, and he does not fit nicely into the Bush judicial agenda.
posted by kosem at 9:35 AM on October 17, 2005
The horrible acts of judicial fiat go both ways, don't they? See, e.g. Bush v. Gore 531 U.S. 98 (2000) (holding, inter alia that the Equal Protection Clause(!) of the Fifth amendment as incorporated (wonder how HM feels about that) through the Fourteenth federally guarantees universal standards of vote re-counting, but not counting) (emphasis, snarky editorializing and sloppy blue-booking added)
It's just a question of whose fiats you like best. By no means does the left own judicial activism.
And related:
Does the pres want strict constructionists? (Of course he doesn't.)
I can really only think of one, and he does not fit nicely into the Bush judicial agenda.
posted by kosem at 9:35 AM on October 17, 2005
I believe she will be defeated by Dems + angry conservative Repubs...which is why Bush is trotting out the Texas judges today.
This is only news today because they're spreading new talking points about her, trying to salvage the nomination. This is one of them.
posted by amberglow at 9:38 AM on October 17, 2005
This is only news today because they're spreading new talking points about her, trying to salvage the nomination. This is one of them.
posted by amberglow at 9:38 AM on October 17, 2005
Wow, Dios talking sense. What is that oinking noise I hear from overhead?
More generally... so, Myers was the straw that broke the camel's back? Bush had to nominate his family lawyer to the Supreme Court before people turned against him? It's good that it happened, but... it had to come to that?
It wasn't lying over the reason for the war, or the energized terrorists as a result of that war, or all the war dead, or appointing John Bolton to the United Nations, or all his other cronies scattered mischeviously across the government, or the whole anti-science thing, the thing about supporting Intelligent Design in schools, his rampant disdain for intellectuals (a.k.a. "those people who actually know what they're talking about"), or subverting the national forestry service, or his chasing out of a legion of qualified government officials because they didn't kowtow to the Bush Agenda, or his poisoning of discourse, or the dirty tricks in getting into the White House (I'm speaking specifically of the rumor spread concerning John McCain), or the bullying policy concerning what questions can get asked at press conferences, or the business with that web site guy at press conferences, or the choreographed public events where you had to take loyalty oaths and basically prove you wouldn't disagree with the President in order to hear what he's saying, or the other whole business with the columnist who the administration actually paid to support them, or No Child Left Behind, or the very NAME "No Child Left Behind," or how about "Mission Accomplished" while we're at it, or the fact that the man makes J. Danforth Quayle look like Socrates?
I think what really happened is that George W. Bush said a magic word that broke the spell, but no one told him what it was beforehand. He stumbled over one of the roots of neocon dogma without seeing it lying there. But that's just off the top of my head.
posted by JHarris at 9:46 AM on October 17, 2005
More generally... so, Myers was the straw that broke the camel's back? Bush had to nominate his family lawyer to the Supreme Court before people turned against him? It's good that it happened, but... it had to come to that?
It wasn't lying over the reason for the war, or the energized terrorists as a result of that war, or all the war dead, or appointing John Bolton to the United Nations, or all his other cronies scattered mischeviously across the government, or the whole anti-science thing, the thing about supporting Intelligent Design in schools, his rampant disdain for intellectuals (a.k.a. "those people who actually know what they're talking about"), or subverting the national forestry service, or his chasing out of a legion of qualified government officials because they didn't kowtow to the Bush Agenda, or his poisoning of discourse, or the dirty tricks in getting into the White House (I'm speaking specifically of the rumor spread concerning John McCain), or the bullying policy concerning what questions can get asked at press conferences, or the business with that web site guy at press conferences, or the choreographed public events where you had to take loyalty oaths and basically prove you wouldn't disagree with the President in order to hear what he's saying, or the other whole business with the columnist who the administration actually paid to support them, or No Child Left Behind, or the very NAME "No Child Left Behind," or how about "Mission Accomplished" while we're at it, or the fact that the man makes J. Danforth Quayle look like Socrates?
I think what really happened is that George W. Bush said a magic word that broke the spell, but no one told him what it was beforehand. He stumbled over one of the roots of neocon dogma without seeing it lying there. But that's just off the top of my head.
posted by JHarris at 9:46 AM on October 17, 2005
This may be true, but this is a policy argument as opposed to a constitutional argument,
not if personal autonomy is a constitutional right, which the Roe decision decided it was. A person can't be forced to donate a kidney even if it would save the life of a fully developed human being, because she has jurisdiction over her kidneys primarily and duties to other people only secondarily. Roe ruled that a woman has jurisdiction over her uterus/body primarily, and duties to the nascent growth inside her only secondarily.
posted by mdn at 9:51 AM on October 17, 2005
not if personal autonomy is a constitutional right, which the Roe decision decided it was. A person can't be forced to donate a kidney even if it would save the life of a fully developed human being, because she has jurisdiction over her kidneys primarily and duties to other people only secondarily. Roe ruled that a woman has jurisdiction over her uterus/body primarily, and duties to the nascent growth inside her only secondarily.
posted by mdn at 9:51 AM on October 17, 2005
the states will be free to regulate abortion as they see fit.
Much like other "state issues" such as: medical marijuana, whether Terri Schiavo's husband should be allowed to remove her feeding tube, and how a recount should be handled during a disputed presidential election. The movement to get Roe v. Wade overturned isn't coming from people who think that Roe v. Wade was an unwelcome intrusion on states' rights to enact medical regulations. It comes from people who think abortion should be illegal. Whatever your view on abortion, it would help if people were a bit more honest about this. Abortion will be "left to the states" for about 5 minutes before pro-choice and pro-life lobbyists start begging congressmen to pass national laws to deal with abortion. And why shouldn't they? Claiming that abortion should remain legal in some states while being illegal in others carries about as much moral weight for many people as claiming that slavery should remain legal in some states but not in others.
posted by deanc at 9:54 AM on October 17, 2005
Much like other "state issues" such as: medical marijuana, whether Terri Schiavo's husband should be allowed to remove her feeding tube, and how a recount should be handled during a disputed presidential election. The movement to get Roe v. Wade overturned isn't coming from people who think that Roe v. Wade was an unwelcome intrusion on states' rights to enact medical regulations. It comes from people who think abortion should be illegal. Whatever your view on abortion, it would help if people were a bit more honest about this. Abortion will be "left to the states" for about 5 minutes before pro-choice and pro-life lobbyists start begging congressmen to pass national laws to deal with abortion. And why shouldn't they? Claiming that abortion should remain legal in some states while being illegal in others carries about as much moral weight for many people as claiming that slavery should remain legal in some states but not in others.
posted by deanc at 9:54 AM on October 17, 2005
The subject of abortion raises profound moral issues upon which people of good will can and do disagree. Whatever the proper resolution of the moral debate, before Roe v. Wade, few people imagined that the Constitution resolved it. In that regard, having such a profound moral issue resolved by an extremely weak and naked act of judicial fiat is troubling. But the naked power grab by the Court and politicization of it is pernicious to the authority the Court enjoys.
If you take the time and actually read the 51-page opinion, you will be astonished how much of the opinion is pure dicta and how the entire opinion rests on its one sentence holding:
The Constitution does not explicitly mention any right of privacy... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
That is the entirety of the Court's opinion. The Court declined to settle the question of where the right of privacy or the subsidiary right to abort is to be attached to the Constitution's text. The opinion seems to regard that as a mere technicality that really does not matter, even though the resolution of such a question is the primary function of the Court. The opinion does not once say what neutral principle defines the derivation and scope of the new right so that we might know both why it covers the absolute liberty of choice and what else it might cover in the future other than abortion (interestingly, the right to privacy has not applied in any other cases than contraception cases). The Court merely states wherever the right may be located and whatever it may cover, it is "broad enough" for to cover the issue it is deciding. There is nothing that resembles legal reasoning or construction. It is nothing but judicial fiat.
Contrast that with the dissent from Justice White:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court pehaps has authority to do what it does today; but in my view its judgment is an improvident and extravagnant excercise of the power of judicial review that the Constitution extends to this Court.
The opinion may be valued by many for the result, but Justice White's critique is damning and correct. It's a shame that the emblematic opinion of the Supreme Court is Roe v. Wade, a constitutionally poor decision.
I say this all to point out a very salient point: one can find fault with the opinion for its poor reasoning and think it a horrid opinion, even though agreeing with the policy of abortion. If you doubt this, then look at Dean John Hart Ely, a modern hero of liberal judicial scholars, who was revulsed by how poor of a decision it was. Constitutional scholars has longed argued that Roe should be overturned because it is a bad precedent, while also arguing that abortion should be legal. So do not confuse the two concepts. They are separate and distinct.
Much good will come of the day that the Court is not looked to for policy assistance (note the people in this thread who mention that a result they don't like will occur if this is left to democratic means). Roe should not be emblematic of the Supreme Court, and I submit the moral authority of the Court will not return until the opinion is overturned, results be damned.
posted by dios at 9:54 AM on October 17, 2005
If you take the time and actually read the 51-page opinion, you will be astonished how much of the opinion is pure dicta and how the entire opinion rests on its one sentence holding:
The Constitution does not explicitly mention any right of privacy... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
That is the entirety of the Court's opinion. The Court declined to settle the question of where the right of privacy or the subsidiary right to abort is to be attached to the Constitution's text. The opinion seems to regard that as a mere technicality that really does not matter, even though the resolution of such a question is the primary function of the Court. The opinion does not once say what neutral principle defines the derivation and scope of the new right so that we might know both why it covers the absolute liberty of choice and what else it might cover in the future other than abortion (interestingly, the right to privacy has not applied in any other cases than contraception cases). The Court merely states wherever the right may be located and whatever it may cover, it is "broad enough" for to cover the issue it is deciding. There is nothing that resembles legal reasoning or construction. It is nothing but judicial fiat.
Contrast that with the dissent from Justice White:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court pehaps has authority to do what it does today; but in my view its judgment is an improvident and extravagnant excercise of the power of judicial review that the Constitution extends to this Court.
The opinion may be valued by many for the result, but Justice White's critique is damning and correct. It's a shame that the emblematic opinion of the Supreme Court is Roe v. Wade, a constitutionally poor decision.
I say this all to point out a very salient point: one can find fault with the opinion for its poor reasoning and think it a horrid opinion, even though agreeing with the policy of abortion. If you doubt this, then look at Dean John Hart Ely, a modern hero of liberal judicial scholars, who was revulsed by how poor of a decision it was. Constitutional scholars has longed argued that Roe should be overturned because it is a bad precedent, while also arguing that abortion should be legal. So do not confuse the two concepts. They are separate and distinct.
Much good will come of the day that the Court is not looked to for policy assistance (note the people in this thread who mention that a result they don't like will occur if this is left to democratic means). Roe should not be emblematic of the Supreme Court, and I submit the moral authority of the Court will not return until the opinion is overturned, results be damned.
posted by dios at 9:54 AM on October 17, 2005
It is funny how for weeks after the appointment of Roberts, leading up to his confirmation, the right wing pols and pundits couldn't stop talking about horrible it was of those on the left to politicize the judicial appointment process. Now their biggest fear and complaint about Miers is political. Is she conservative enough, how will she vote on overturning Roe? Such hypocrisy.
posted by caddis at 9:55 AM on October 17, 2005
posted by caddis at 9:55 AM on October 17, 2005
The movement to get Roe v. Wade overturned isn't coming from people who think that Roe v. Wade was an unwelcome intrusion on states' rights to enact medical regulations. It comes from people who think abortion should be illegal.
posted by deanc at 11:54 AM CST on October 17
I don't know any other way to say this than to say that is just not true. Perhaps it is true from some quarters. There is likely a contingent of people who dislike the policy ruling of Roe. But in legal circles, the problem with Roe has nothing to do with abortion and everything to do with the authority of the court being eroded by a horrible decision from a constitutional perspective.
posted by dios at 9:56 AM on October 17, 2005
posted by deanc at 11:54 AM CST on October 17
I don't know any other way to say this than to say that is just not true. Perhaps it is true from some quarters. There is likely a contingent of people who dislike the policy ruling of Roe. But in legal circles, the problem with Roe has nothing to do with abortion and everything to do with the authority of the court being eroded by a horrible decision from a constitutional perspective.
posted by dios at 9:56 AM on October 17, 2005
S.C. writes "I'm still not 100% convinced the U.S. won't invade us for our oil/lumber/pot-smoking/abortions/gay-marrying. Because Jesus wants them to."
On the plus side we could then all migrate to Europe as refugees...
posted by clevershark at 9:58 AM on October 17, 2005
On the plus side we could then all migrate to Europe as refugees...
posted by clevershark at 9:58 AM on October 17, 2005
Well, actually Dios hits closer to the point but misses it. Roe is primarily about abortion, but also about the balance between the implied right to privacy (extended from the requirements for due process) vs. state interests. So it has implications in regards to access to contraception, domestic partnerships and sodomy laws.
posted by KirkJobSluder at 10:01 AM on October 17, 2005
posted by KirkJobSluder at 10:01 AM on October 17, 2005
Personally, I think we need a constitutional amendment that distills out the privacy implications of various admendments into an explicit statement.
posted by KirkJobSluder at 10:04 AM on October 17, 2005
posted by KirkJobSluder at 10:04 AM on October 17, 2005
We leave a lot of things to the states: capital punishment, euthanasia, criminal laws, marriage laws, family laws, health laws.
Apparently we don't, dios. For example, the Supreme Court's opinions on various states' applications of or rulings on:
• Capital punishment, under Amendments 8 and 14
• Marriage laws (Loving vs Virginia)
• Aspects of euthanasia
• Definition of "health"
Why should abortion be so much different from other issues that it deserves to be federally protected from democratic imperative by a horrible act of judicial fiat?
posted by dios at 11:49 AM EST on October 17 [!]
Abortion should be ruled on for the same reason that the federal courts have already intervened on issues related to capital punishment, euthanasia, marriage laws, health laws, etc.
I'm not a lawyer and found this stuff about SCOTUS case opinions literally in minutes. *cough*
posted by Rothko at 10:06 AM on October 17, 2005
Apparently we don't, dios. For example, the Supreme Court's opinions on various states' applications of or rulings on:
• Capital punishment, under Amendments 8 and 14
• Marriage laws (Loving vs Virginia)
• Aspects of euthanasia
• Definition of "health"
Why should abortion be so much different from other issues that it deserves to be federally protected from democratic imperative by a horrible act of judicial fiat?
posted by dios at 11:49 AM EST on October 17 [!]
Abortion should be ruled on for the same reason that the federal courts have already intervened on issues related to capital punishment, euthanasia, marriage laws, health laws, etc.
I'm not a lawyer and found this stuff about SCOTUS case opinions literally in minutes. *cough*
posted by Rothko at 10:06 AM on October 17, 2005
You know, about 50 years ago, a lot of states had laws which prevented black people from voting, or riding on buses, or using the same bathrooms as white people, too. When SCOTUS struck all of these laws down, one by one, was this "legislating from the bench" as well, or just good solid judicial review in action?
Does it depend on who you ask?
posted by wakko at 10:06 AM on October 17, 2005
Does it depend on who you ask?
posted by wakko at 10:06 AM on October 17, 2005
There's nothing remotely hyper-technical about it. States aren't free to set whatever death penalty and marriage laws they desire, ergo these policies are not "up to" the states. States can regulate punishment within the guidelines of the federal Constitution. States can regulate marriage within the guidelines of the federal Constitution. States can regulate abortion within the guidelines of the federal Constitution.
posted by ROU_Xenophobe at 11:33 AM CST on October 17
It is technical and you are glossing over it. Again, the Constitution does not require capital punishment. Every state in the union could choose to not have it. The Constitution does not require marriage. Every state in the union could choose to do away with the practice. Likewise, the Constitution does not require abortion be legal, every state in the union could choose to do away practice.... before Roe v. Wade.
But it doesn't stop there, the Constitution does not require that liberty encompass smoking, every state could choose to outlaw it, but if it is legalized, the government can regulate it. In this sense, these issues are "left to the states." Obviously they are not left to the states in a complete vaccuum.
The technical point is that regulation of state action is defined by constitutional principle. Discrimination being one example of a primary regulation. Another being rights. A lesser, but more invidious one, is interstate commerce. These regulations limit state action in its application; they do not require it, nor could they without some Constitutional basis (and here we are back to the problem of Roe; no constitutional basis).
The Constitution doesn't grant negative liberty. The Constitution limits federal intereference into liberty based on various considerations. Saying that the federal government can regulate actions taken by the state is not to say that the federal government can require that an action exist in a state unless the action has a constitutional basis, e.g. voting. However, if the state chooses to grant liberties or rights, the federal government can regulate it. But none of that requires a state to grant liberties or rights.
posted by dios at 10:07 AM on October 17, 2005
posted by ROU_Xenophobe at 11:33 AM CST on October 17
It is technical and you are glossing over it. Again, the Constitution does not require capital punishment. Every state in the union could choose to not have it. The Constitution does not require marriage. Every state in the union could choose to do away with the practice. Likewise, the Constitution does not require abortion be legal, every state in the union could choose to do away practice.... before Roe v. Wade.
But it doesn't stop there, the Constitution does not require that liberty encompass smoking, every state could choose to outlaw it, but if it is legalized, the government can regulate it. In this sense, these issues are "left to the states." Obviously they are not left to the states in a complete vaccuum.
The technical point is that regulation of state action is defined by constitutional principle. Discrimination being one example of a primary regulation. Another being rights. A lesser, but more invidious one, is interstate commerce. These regulations limit state action in its application; they do not require it, nor could they without some Constitutional basis (and here we are back to the problem of Roe; no constitutional basis).
The Constitution doesn't grant negative liberty. The Constitution limits federal intereference into liberty based on various considerations. Saying that the federal government can regulate actions taken by the state is not to say that the federal government can require that an action exist in a state unless the action has a constitutional basis, e.g. voting. However, if the state chooses to grant liberties or rights, the federal government can regulate it. But none of that requires a state to grant liberties or rights.
posted by dios at 10:07 AM on October 17, 2005
Much good will come of the day that the Court is not looked to for policy assistance (note the people in this thread who mention that a result they don't like will occur if this is left to democratic means)
posted by dios at 12:54 PM EST on October 17 [!]
Like using the SCOTUS to elect George W. Bush in 2000, for example. I'll agree with you there. Really bad call to use the Court for deciding a presidential election.
posted by Rothko at 10:08 AM on October 17, 2005
posted by dios at 12:54 PM EST on October 17 [!]
Like using the SCOTUS to elect George W. Bush in 2000, for example. I'll agree with you there. Really bad call to use the Court for deciding a presidential election.
posted by Rothko at 10:08 AM on October 17, 2005
Personally, I think we need a constitutional amendment that distills out the privacy implications of various admendments into an explicit statement.
posted by KirkJobSluder at 12:04 PM CST on October 17
I would support such an action. However, the fear is that, as Marshall said, the Constitution cannot partake of the prolixity of a legal code. When you define something constitutionally, it might be hard to cover all exigencies.
And AlexReynolds, you are not understanding my point (which is why I labeled it a "technical point") and your "research" does not implicate what I have said at all. So keep your snarking to yourself.
posted by dios at 10:10 AM on October 17, 2005
posted by KirkJobSluder at 12:04 PM CST on October 17
I would support such an action. However, the fear is that, as Marshall said, the Constitution cannot partake of the prolixity of a legal code. When you define something constitutionally, it might be hard to cover all exigencies.
And AlexReynolds, you are not understanding my point (which is why I labeled it a "technical point") and your "research" does not implicate what I have said at all. So keep your snarking to yourself.
posted by dios at 10:10 AM on October 17, 2005
And AlexReynolds, you are not understanding my point (which is why I labeled it a "technical point") and your "research" does not implicate what I have said at all. So keep your snarking to yourself.
posted by dios at 1:10 PM EST on October 17 [!]
I understand your point perfectly, dios. You just don't like that there are counterexamples to your point.
We don't leave those issues you mentioned to the state any more than we do abortion. Thus your reasoning, such as it is, is apparently based on faulty knowledge of Supreme Court opinions.
posted by Rothko at 10:15 AM on October 17, 2005
posted by dios at 1:10 PM EST on October 17 [!]
I understand your point perfectly, dios. You just don't like that there are counterexamples to your point.
We don't leave those issues you mentioned to the state any more than we do abortion. Thus your reasoning, such as it is, is apparently based on faulty knowledge of Supreme Court opinions.
posted by Rothko at 10:15 AM on October 17, 2005
dios, do you think legal professionals are the impetus behind the recent movement, though? It seems pretty clear to me that while legal pros are whose doing the front line fighting, the neocons and evangelicals are who's engineering the battle.
posted by shmegegge at 10:28 AM on October 17, 2005
posted by shmegegge at 10:28 AM on October 17, 2005
I thought the 3 branches of our government were supposed to "check and balance" each other?
posted by GreyFoxVT at 10:30 AM on October 17, 2005
posted by GreyFoxVT at 10:30 AM on October 17, 2005
if the state chooses to grant liberties or rights, the federal government can regulate it. But none of that requires a state to grant liberties or rights.
No. We are endowed by our creator with our rights -- they are not granted.
posted by Cassford at 10:32 AM on October 17, 2005
No. We are endowed by our creator with our rights -- they are not granted.
posted by Cassford at 10:32 AM on October 17, 2005
dios: The technical point is that regulation of state action is defined by constitutional principle. Discrimination being one example of a primary regulation. Another being rights. A lesser, but more invidious one, is interstate commerce. These regulations limit state action in its application; they do not require it, nor could they without some Constitutional basis (and here we are back to the problem of Roe; no constitutional basis).
Well, I think that is the core of the disagreement. The 14th Amendment says that states can not enforce any law that abridges on freedoms and immunities defined by the federal government. The decision in Roe was that almost all anti-abortion laws violate the implied right to privacy that comes under the penumbra of due process. I suppose one can disagree with the balance between due process and state interest defined by the court in Roe, but I really don't think that one can say there is no constitutional basis.
The problem I see with a lot of these cases is that many aspects of due process are so ambiguous that it comes down to a political debate. For example, I don't think the ambiguity in due process extends so far as to permit extended detention without trial at Gitmo. But I have to admit there is an ambiguity there that can be argued.
Other amendments such as the 14th have clarified ambiguities in the past. I think that an amendment that makes explicit some of the principles that seem to fall out of the 4th and 5th amendments would be a good thing, but a political nightmare.
posted by KirkJobSluder at 10:32 AM on October 17, 2005
Well, I think that is the core of the disagreement. The 14th Amendment says that states can not enforce any law that abridges on freedoms and immunities defined by the federal government. The decision in Roe was that almost all anti-abortion laws violate the implied right to privacy that comes under the penumbra of due process. I suppose one can disagree with the balance between due process and state interest defined by the court in Roe, but I really don't think that one can say there is no constitutional basis.
The problem I see with a lot of these cases is that many aspects of due process are so ambiguous that it comes down to a political debate. For example, I don't think the ambiguity in due process extends so far as to permit extended detention without trial at Gitmo. But I have to admit there is an ambiguity there that can be argued.
Other amendments such as the 14th have clarified ambiguities in the past. I think that an amendment that makes explicit some of the principles that seem to fall out of the 4th and 5th amendments would be a good thing, but a political nightmare.
posted by KirkJobSluder at 10:32 AM on October 17, 2005
I can't help but see Rove's hands all over this nomination. Put forward an ambiguous nominee that will get the Religious Right all riled up, so as to make her even more conservative replacement somehow calming and acceptable.
posted by wrdwrght at 10:36 AM on October 17, 2005
posted by wrdwrght at 10:36 AM on October 17, 2005
To quote Serbo quoting sc: I'm still not 100% convinced the U.S. won't invade us for our lumber/pot-smoking/ abortions/gay-marrying. Because Jesus wants them to.
That would never happen. What would they do with the new states that are pure Democrat or further left? If you're a liberal democracy you're safe because you're more contagious than bird flu.
Umm... I live in Puerto Rico, the last place major bit of land America invaded and kept. We are still waiting for the vote. (107 years and counting)
posted by dances_with_sneetches at 10:38 AM on October 17, 2005
That would never happen. What would they do with the new states that are pure Democrat or further left? If you're a liberal democracy you're safe because you're more contagious than bird flu.
Umm... I live in Puerto Rico, the last place major bit of land America invaded and kept. We are still waiting for the vote. (107 years and counting)
posted by dances_with_sneetches at 10:38 AM on October 17, 2005
I think it is time I went back to Canada for awhile. Been thinking of the move for a few months now, but it is time to start looking for work and a PH.D program.
posted by edgeways at 10:42 AM on October 17, 2005
posted by edgeways at 10:42 AM on October 17, 2005
As the owner of a uterus, do I give a shit about the finer gradations of Constiutional law and whether Roe v. Wade is too messy to please a lot of lawyers? No.
As someone who used to be involved in the anti-abortion movement, do I think for a second that the *majority* of those who want abortion illegal, in every state, give a shit either...or that *they* would hesitate to push for a Constitutional ban on abortion, dropping erstwhile defenders like dios in the dust meanwhile and smashing all his dreams of a pretty, tidy Constitutional process in the meantime? No. And they'd probably tack an anti flag-burning amendment on top of it, just for giggles.
Do I foresee a great deal of suffering, a burgeoning black market in day-after drugs (as the NYTimes pointed out recently, they're easier to use than coathangers, though they still might kill you if you buy them off the street)? Yes. Also, perhaps, a lot of women who've been sitting on their asses this whole time suddenly being radicalized. And while I'm all for radicalization, I'd rather that women not lose their rights to bodily integrity for any amount of time for that to happen.
posted by emjaybee at 10:45 AM on October 17, 2005
As someone who used to be involved in the anti-abortion movement, do I think for a second that the *majority* of those who want abortion illegal, in every state, give a shit either...or that *they* would hesitate to push for a Constitutional ban on abortion, dropping erstwhile defenders like dios in the dust meanwhile and smashing all his dreams of a pretty, tidy Constitutional process in the meantime? No. And they'd probably tack an anti flag-burning amendment on top of it, just for giggles.
Do I foresee a great deal of suffering, a burgeoning black market in day-after drugs (as the NYTimes pointed out recently, they're easier to use than coathangers, though they still might kill you if you buy them off the street)? Yes. Also, perhaps, a lot of women who've been sitting on their asses this whole time suddenly being radicalized. And while I'm all for radicalization, I'd rather that women not lose their rights to bodily integrity for any amount of time for that to happen.
posted by emjaybee at 10:45 AM on October 17, 2005
The Constitution doesn't grant negative liberty. . . . However, if the state chooses to grant liberties or rights, the federal government can regulate it. But none of that requires a state to grant liberties or rights.
I'm sorry, Dios, but that's nonsense and if you really are a lawyer you know it. There are things the States can choose to "do away with" as you put it, and things they can't. For example, every State in the Union could decide to do away with Miranda warnings, but that would be unconstitutional and the Supreme Court would (probably, though these days it's hard to be sure) require that they be reinstated in at least some cases. Every State in the Union could decide to do away with the right to trial by jury in criminal cases, but that too would be unconstitutional and the Supreme Court would (again, probably, but don't ask Jose Padilla) require that it be reinstated in some cases. Every State in the Union could decide to do away with the requirements of probable cause (or at least reasonable suspicion) before search and seizure. I'm not going to say how the current Court would come out on that, but you see where I'm going.
These examples are based on the idea -- obvious from the text of the Constitution -- that there are certain protections in that document that are applicable to individuals, not merely to States. The Constitution is not solely a Federalist document designed to protect states against national interference, much as the neocons may want to cast it as such. You pointed out one such Constitutionally mandated individual right, Dios, the right to vote. Another, according to the Court in Roe and in numerous decisions since then, is a right to individual privacy. Conservatives -- actually, to be fair, just religious conservatives -- hate that right and overturning Roe would be a good start on getting rid of it. That's why it's an important fight, even for those of us who live in places where abortion in unlikely ever to be criminalized.
But to say that the Constitution places no affirmative requirements on States and only limits them in the choices they make is nuts, and, Dios, I think you know that.
posted by The Bellman at 10:45 AM on October 17, 2005
I'm sorry, Dios, but that's nonsense and if you really are a lawyer you know it. There are things the States can choose to "do away with" as you put it, and things they can't. For example, every State in the Union could decide to do away with Miranda warnings, but that would be unconstitutional and the Supreme Court would (probably, though these days it's hard to be sure) require that they be reinstated in at least some cases. Every State in the Union could decide to do away with the right to trial by jury in criminal cases, but that too would be unconstitutional and the Supreme Court would (again, probably, but don't ask Jose Padilla) require that it be reinstated in some cases. Every State in the Union could decide to do away with the requirements of probable cause (or at least reasonable suspicion) before search and seizure. I'm not going to say how the current Court would come out on that, but you see where I'm going.
These examples are based on the idea -- obvious from the text of the Constitution -- that there are certain protections in that document that are applicable to individuals, not merely to States. The Constitution is not solely a Federalist document designed to protect states against national interference, much as the neocons may want to cast it as such. You pointed out one such Constitutionally mandated individual right, Dios, the right to vote. Another, according to the Court in Roe and in numerous decisions since then, is a right to individual privacy. Conservatives -- actually, to be fair, just religious conservatives -- hate that right and overturning Roe would be a good start on getting rid of it. That's why it's an important fight, even for those of us who live in places where abortion in unlikely ever to be criminalized.
But to say that the Constitution places no affirmative requirements on States and only limits them in the choices they make is nuts, and, Dios, I think you know that.
posted by The Bellman at 10:45 AM on October 17, 2005
MetaComment: Even though the FFP is a bit of Meiers-related NewsFilter, many of the comments seem to have degenerated into an argument about the merits of Roe v. Wade. Isn't that a bit of a tangent?
Comment: Aside from any promises that were made about how Meiers would or wouldn't vote, I was shocked by David Brooks' column about Meiers, titled "In Her Words." (Sorry there's no link, but the NYT no longer allows direct access to their columnists.) Brooks quoted part of the writings that Meiers had published in her role as President of the Texas Bar Association. And regardless of the sentiments she expressed, her writing was a garbled mess of grammar. With that example of her rhetoric, isn't it fair to question whether she's qualified to be a Justice?
posted by Scooter at 10:46 AM on October 17, 2005
Comment: Aside from any promises that were made about how Meiers would or wouldn't vote, I was shocked by David Brooks' column about Meiers, titled "In Her Words." (Sorry there's no link, but the NYT no longer allows direct access to their columnists.) Brooks quoted part of the writings that Meiers had published in her role as President of the Texas Bar Association. And regardless of the sentiments she expressed, her writing was a garbled mess of grammar. With that example of her rhetoric, isn't it fair to question whether she's qualified to be a Justice?
posted by Scooter at 10:46 AM on October 17, 2005
In fact, I would argue that a perhaps better defining breakdown between cultural conservatives and cultural liberals really is about how broadly one defines privacy rights.
posted by KirkJobSluder at 10:47 AM on October 17, 2005
posted by KirkJobSluder at 10:47 AM on October 17, 2005
Dios, from your view it looks as if the Constitution unites is on a level similar to that of the European Union? Except for some broad rights, regulation of commerce, a united military and federal taxation -- that's all that really binds the states?
posted by geoff. at 10:48 AM on October 17, 2005
posted by geoff. at 10:48 AM on October 17, 2005
Not to totally derail, but the wisdom of Ali G on abortion is great. His comments, while interviewing someone at an anti-abortion rally:
"Has you ever had an abortion? Surely you should try something before you say it is bad. Because I was very anti-Burger King, but then I went there and I had the flame grilled, ain’t it, and you know it was, like, amazing."
posted by H. Roark at 10:49 AM on October 17, 2005
"Has you ever had an abortion? Surely you should try something before you say it is bad. Because I was very anti-Burger King, but then I went there and I had the flame grilled, ain’t it, and you know it was, like, amazing."
posted by H. Roark at 10:49 AM on October 17, 2005
The Bellman: These examples are based on the idea -- obvious from the text of the Constitution -- that there are certain protections in that document that are applicable to individuals, not merely to States.
It's explicitly stated as such in the 14th Amendment. Individual rights trump state's interests.
Another, according to the Court in Roe and in numerous decisions since then, is a right to individual privacy.
While I agree, I don't think we should pretend that the right to individual privacy is all that strong in the constitution. Much of the privacy rights have relied on interpretation of what is reasonable and unreasonable.
posted by KirkJobSluder at 10:52 AM on October 17, 2005
It's explicitly stated as such in the 14th Amendment. Individual rights trump state's interests.
Another, according to the Court in Roe and in numerous decisions since then, is a right to individual privacy.
While I agree, I don't think we should pretend that the right to individual privacy is all that strong in the constitution. Much of the privacy rights have relied on interpretation of what is reasonable and unreasonable.
posted by KirkJobSluder at 10:52 AM on October 17, 2005
I wish you people who are not lawyers would quit trying to argue technical legal issues with a lawyer.
There is a communcation gap when you do so: dios is typically using very specific legal definitions and concepts while everyone else is using common sense and layman's understanding. The two are not fully compatible.
Additionally, many of dios's arguments appear to be based on what is constitutional versus what is judicial policy. There is no constitutional basis for the federal justice system to rule on the legality of abortion: in a strict constitutionalist approach, that is the domain of the individual states.
Dios is not arguing whether or not abortion is moral or legal, but how the constitution and judicial system should function in regards to the issue.
In other words, learn how to read. Quit trying to spin his words, and read them for what they actually say.
footnote: I'm not entirely sure I'm using the correct words re: constitution and judicial policy. Not familiar enough with the law, let along the US law, to be sure of which words are precisely correct. Dios, feel free to rewrite this message using proper legal language!
posted by five fresh fish at 10:57 AM on October 17, 2005
There is a communcation gap when you do so: dios is typically using very specific legal definitions and concepts while everyone else is using common sense and layman's understanding. The two are not fully compatible.
Additionally, many of dios's arguments appear to be based on what is constitutional versus what is judicial policy. There is no constitutional basis for the federal justice system to rule on the legality of abortion: in a strict constitutionalist approach, that is the domain of the individual states.
Dios is not arguing whether or not abortion is moral or legal, but how the constitution and judicial system should function in regards to the issue.
In other words, learn how to read. Quit trying to spin his words, and read them for what they actually say.
footnote: I'm not entirely sure I'm using the correct words re: constitution and judicial policy. Not familiar enough with the law, let along the US law, to be sure of which words are precisely correct. Dios, feel free to rewrite this message using proper legal language!
posted by five fresh fish at 10:57 AM on October 17, 2005
There is likely a contingent of people who dislike the policy ruling of Roe.
Really. Just a likelihood?
Okay, enough cheap shots – all I have to say on this topic is that Roe v. Wade is about the abstract principle of courts "legislating from the bench" to the same degree that the Civil War was about the abstract principle of states' rights – except by "the same degree" I really mean much, much, much, much, much less.
posted by furiousthought at 11:02 AM on October 17, 2005
Really. Just a likelihood?
Okay, enough cheap shots – all I have to say on this topic is that Roe v. Wade is about the abstract principle of courts "legislating from the bench" to the same degree that the Civil War was about the abstract principle of states' rights – except by "the same degree" I really mean much, much, much, much, much less.
posted by furiousthought at 11:02 AM on October 17, 2005
I understand your point perfectly, dios. You just don't like that there are counterexamples to your point.
If you think those are counterexamples of what I said, then no. No you don't understand my argument. But I'm sure you won't attempt to understand it and will continue on nevertheless. I expect nothing less from you.
posted by dios at 11:16 AM on October 17, 2005
If you think those are counterexamples of what I said, then no. No you don't understand my argument. But I'm sure you won't attempt to understand it and will continue on nevertheless. I expect nothing less from you.
posted by dios at 11:16 AM on October 17, 2005
Dios is not arguing whether or not abortion is moral or legal, but how the constitution and judicial system should function in regards to the issue.
In other words, learn how to read. Quit trying to spin his words, and read them for what they actually say.
posted by five fresh fish at 1:57 PM EST on October 17 [!]
How about you learn how to read?
No one is saying anything differently, or anything at all about the morality or amorality of abortion. dios made an assertion that the Constitution doesn't allow the federal government to constrain or define what laws states may enact and administrate. Several court cases already disprove his assertion, by his own terms.
Therefore, many aspects of state law are regulated by the Supreme Court; using his own benchmark, abortion should therfore be no different, despite his personal objections. So if he wants his opinion regarding the purpose of the federal court system to be taken more seriously, perhaps putting the word "technical" in scare quotes shouldn't absolve him of his responsibility to address the factual inconsistencies in his assertions. Or he should initially have defined his objections differently. That's no one's fault but his.
posted by Rothko at 11:17 AM on October 17, 2005
In other words, learn how to read. Quit trying to spin his words, and read them for what they actually say.
posted by five fresh fish at 1:57 PM EST on October 17 [!]
How about you learn how to read?
No one is saying anything differently, or anything at all about the morality or amorality of abortion. dios made an assertion that the Constitution doesn't allow the federal government to constrain or define what laws states may enact and administrate. Several court cases already disprove his assertion, by his own terms.
Therefore, many aspects of state law are regulated by the Supreme Court; using his own benchmark, abortion should therfore be no different, despite his personal objections. So if he wants his opinion regarding the purpose of the federal court system to be taken more seriously, perhaps putting the word "technical" in scare quotes shouldn't absolve him of his responsibility to address the factual inconsistencies in his assertions. Or he should initially have defined his objections differently. That's no one's fault but his.
posted by Rothko at 11:17 AM on October 17, 2005
Dios,
If Bush were really interested in protecting the court, don't you think he would have nominated someone that understands constitutional law? He's just trying to get someone, anyone, in that will vote against Roe no matter what. For some of the things Bush is for that means picking someone who does NOT understand constitutional law and doesn't care to.
posted by xammerboy at 11:18 AM on October 17, 2005
If Bush were really interested in protecting the court, don't you think he would have nominated someone that understands constitutional law? He's just trying to get someone, anyone, in that will vote against Roe no matter what. For some of the things Bush is for that means picking someone who does NOT understand constitutional law and doesn't care to.
posted by xammerboy at 11:18 AM on October 17, 2005
I certainly hope that she does it.
I hope they do to. Then I hope the government then raises taxes on the 'upper class' - esp. the ones who wanted Roe gone.
To pay for the extra schools, extra jails, extra roads to get to the extra housing.
That, and 'because its murder' crowd happly turns over their pregnant daughter to the hangman when she goes and gets an abortion.
Let 'em reap what they so happly sow.
posted by rough ashlar at 11:18 AM on October 17, 2005
I hope they do to. Then I hope the government then raises taxes on the 'upper class' - esp. the ones who wanted Roe gone.
To pay for the extra schools, extra jails, extra roads to get to the extra housing.
That, and 'because its murder' crowd happly turns over their pregnant daughter to the hangman when she goes and gets an abortion.
Let 'em reap what they so happly sow.
posted by rough ashlar at 11:18 AM on October 17, 2005
If you think those are counterexamples of what I said, then no. No you don't understand my argument. But I'm sure you won't attempt to understand it and will continue on nevertheless. I expect nothing less from you.
posted by dios at 2:16 PM EST on October 17 [!]
Please explain how Loving vs. Virginia allows the states to do whatever they please, including ban mixed-race marriages.
And stop with the baiting. You made a very strong claim you haven't backed up with anything so far, other than putting the word "technical" in scare quotes.
posted by Rothko at 11:24 AM on October 17, 2005
posted by dios at 2:16 PM EST on October 17 [!]
Please explain how Loving vs. Virginia allows the states to do whatever they please, including ban mixed-race marriages.
And stop with the baiting. You made a very strong claim you haven't backed up with anything so far, other than putting the word "technical" in scare quotes.
posted by Rothko at 11:24 AM on October 17, 2005
The Bellman: the examples you listed I already addressed. The problem is that you are missing the difference between constitutional requirements and proscriptions.
Let me make the point plainer: The constitution requires a trial by jury in some cases. Thus, a state cannot abolish that. That is different than things which are not expressly within the Constitution.
The constitution does not require many things that the state can engage in or permit: capital punishment, marriage, allowing smoking, relations within certain degress of consanguity, imposition of property taxes, motorcycle helmet laws. The state can allow any of those things. Or, the state can choose to not have any of them. However, although the state has the authority to make such laws permitting things, it can be regulated in their application. Thus, a state cannot say "white people can smoke, no one else can." That would be regulated based on a specific constitutional guarentee: racial discrimination is prohibited. But the state is within their rights to say "no one can smoke." The federal constitution does not require that a state allow people to smoke. Just like it does not require that a state allow people to have abortion. Now you may argue that the Constitution should require that, but that would be an argument for an amendment and not from the text as it currently exists.
Requiring a state to allow abortion is no different than requiring a state to engage in capital punishment, requiring a state to allow smoking, requiring a state to permit relations within two degrees of consanguity. There is no constitutional basis for such an intrusion into state matters in any of those cases. However, if the state permits them, the federal government can regulate them based on constitutional principles as I addressed in an earlier point.
The mistake that several people are having is that they are equating the ability to regulate with the ability to require. They are disparate concepts and the difference lies in an understanding of the Constitution, federalism, and constitutional jurisprudence.
posted by dios at 11:30 AM on October 17, 2005
Let me make the point plainer: The constitution requires a trial by jury in some cases. Thus, a state cannot abolish that. That is different than things which are not expressly within the Constitution.
The constitution does not require many things that the state can engage in or permit: capital punishment, marriage, allowing smoking, relations within certain degress of consanguity, imposition of property taxes, motorcycle helmet laws. The state can allow any of those things. Or, the state can choose to not have any of them. However, although the state has the authority to make such laws permitting things, it can be regulated in their application. Thus, a state cannot say "white people can smoke, no one else can." That would be regulated based on a specific constitutional guarentee: racial discrimination is prohibited. But the state is within their rights to say "no one can smoke." The federal constitution does not require that a state allow people to smoke. Just like it does not require that a state allow people to have abortion. Now you may argue that the Constitution should require that, but that would be an argument for an amendment and not from the text as it currently exists.
Requiring a state to allow abortion is no different than requiring a state to engage in capital punishment, requiring a state to allow smoking, requiring a state to permit relations within two degrees of consanguity. There is no constitutional basis for such an intrusion into state matters in any of those cases. However, if the state permits them, the federal government can regulate them based on constitutional principles as I addressed in an earlier point.
The mistake that several people are having is that they are equating the ability to regulate with the ability to require. They are disparate concepts and the difference lies in an understanding of the Constitution, federalism, and constitutional jurisprudence.
posted by dios at 11:30 AM on October 17, 2005
You made a very strong claim you haven't backed up with anything so far
Typical DIOS move. Makes a statement then can't be bothered to back it up.
posted by rough ashlar at 11:32 AM on October 17, 2005
Typical DIOS move. Makes a statement then can't be bothered to back it up.
posted by rough ashlar at 11:32 AM on October 17, 2005
how the constitution and judicial system should function in regards to the issue.
Well and good, but the judicial system appears to disagree with dios regarding how it "should" function (to say nothing of how it "does" function). He also makes very naive statements regarding the role of the federal government which will inevitably, in the event roe v. wade is overturned, step in to fill the vacuum.
posted by deanc at 11:34 AM on October 17, 2005
Well and good, but the judicial system appears to disagree with dios regarding how it "should" function (to say nothing of how it "does" function). He also makes very naive statements regarding the role of the federal government which will inevitably, in the event roe v. wade is overturned, step in to fill the vacuum.
posted by deanc at 11:34 AM on October 17, 2005
Please explain how Loving vs. Virginia allows the states to do whatever they please, including ban mixed-race marriages.
I never said that states can "do whatever they want."
But I'll explain the point one last time, and if you don't get it, then you aren't engaging in this discussion in good faith.
The federal government does not require the state of Virginia to grant marriage licenses. The state of Virginia could do away with the practice in toto as a constitutional matter.
However, if the state of Virginia is going to allow marriages to occur, then the state cannot do so in a discriminatory manner.
A state doesn't have to let people smoke. But a state can't let only White people do it. A state doesn't have to punish people with wire cutters. But if it does so, it must do so in a manner that isn't cruel and unusual.
It is the difference between a requirement and a proscription. If you can't parse the difference, then maybe I was right to call it a "technical point" and maybe I'm wasting my time explaining it to you, AlexReynolds.
posted by dios at 11:35 AM on October 17, 2005
I never said that states can "do whatever they want."
But I'll explain the point one last time, and if you don't get it, then you aren't engaging in this discussion in good faith.
The federal government does not require the state of Virginia to grant marriage licenses. The state of Virginia could do away with the practice in toto as a constitutional matter.
However, if the state of Virginia is going to allow marriages to occur, then the state cannot do so in a discriminatory manner.
A state doesn't have to let people smoke. But a state can't let only White people do it. A state doesn't have to punish people with wire cutters. But if it does so, it must do so in a manner that isn't cruel and unusual.
It is the difference between a requirement and a proscription. If you can't parse the difference, then maybe I was right to call it a "technical point" and maybe I'm wasting my time explaining it to you, AlexReynolds.
posted by dios at 11:35 AM on October 17, 2005
Any state could decriminalize or criminalize the carrying of wire cutters within 50 feet of a barbed wire fence. It is the application of that law that is regulated.
(not to run the discussion any further afield, but here is my utterly unlawyerly question...)
I'm genuinely confused. I was thinking the interstate commerce clause was what gave the fed authority over illegal drugs (Gonzales v. Raich, thx Wikipedia!), even if they were not transported over state lines. How does that trump what you've described here?
posted by sonofsamiam at 11:36 AM on October 17, 2005
(not to run the discussion any further afield, but here is my utterly unlawyerly question...)
I'm genuinely confused. I was thinking the interstate commerce clause was what gave the fed authority over illegal drugs (Gonzales v. Raich, thx Wikipedia!), even if they were not transported over state lines. How does that trump what you've described here?
posted by sonofsamiam at 11:36 AM on October 17, 2005
If Bush were really interested in protecting the court, don't you think he would have nominated someone that understands constitutional law?
posted by xammerboy at 1:18 PM CST on October 17
I wish that he would have picked a more qualified person for the job. I am on record, from the first day and post on this topic, that I thought it was a bad nomination.
posted by dios at 11:37 AM on October 17, 2005
posted by xammerboy at 1:18 PM CST on October 17
I wish that he would have picked a more qualified person for the job. I am on record, from the first day and post on this topic, that I thought it was a bad nomination.
posted by dios at 11:37 AM on October 17, 2005
Constitutional scholars has longed argued that Roe should be overturned because it is a bad precedent, while also arguing that abortion should be legal. - dios
Can you point me to any subsequent decisions which rested upon this ruling as precedent, please? Because it's been around for 30+ years now, and if it was so dangerous, what harm has ensued?
Sincere question.
posted by dash_slot- at 11:40 AM on October 17, 2005
Can you point me to any subsequent decisions which rested upon this ruling as precedent, please? Because it's been around for 30+ years now, and if it was so dangerous, what harm has ensued?
Sincere question.
posted by dash_slot- at 11:40 AM on October 17, 2005
Just like [the Constitution] does not require that a state allow people to have abortion. Now you may argue that the Constitution should require that, but that would be an argument for an amendment and not from the text as it currently exists.
``Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ...[T]he Supreme Court, per Blackmun, held that abortion was a constitutional right that the states could only abridge after the first six months of pregnancy. More specifically, the Court held that: (1) the Court had jurisdiction; ...(9) the state may not regulate abortion at all during the first trimester...'
posted by Rothko at 11:41 AM on October 17, 2005
``Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ...[T]he Supreme Court, per Blackmun, held that abortion was a constitutional right that the states could only abridge after the first six months of pregnancy. More specifically, the Court held that: (1) the Court had jurisdiction; ...(9) the state may not regulate abortion at all during the first trimester...'
posted by Rothko at 11:41 AM on October 17, 2005
I think it's interesting that most people stopped reading one of dios' paragraphs after the first sentence. Let me quote, and emphasize:
It seems that some of what dios has said in the above post has been misunderstood here. He's not even espousing much of a view, but explaining legal procedures.
posted by boo_radley at 11:45 AM on October 17, 2005
"The Constitution doesn't grant negative liberty. The Constitution limits federal intereference into liberty based on various considerations. Saying that the federal government can regulate actions taken by the state is not to say that the federal government can require that an action exist in a state unless the action has a constitutional basis, e.g. voting."This further explanation nullifies -- or at least takes into consideration Bellman's objection of dios' writing. The objections he brings are all constitutional in nature, and fall into the exception that dios outlined.
It seems that some of what dios has said in the above post has been misunderstood here. He's not even espousing much of a view, but explaining legal procedures.
posted by boo_radley at 11:45 AM on October 17, 2005
I disagree with Roe, but for a much different reason than any of those stated above.
I believe that a finding of a right to privacy was the correct finding, one that has been used appropriately in subsequent decisions. However, its application in Roe only answered half the question, and missed the crux of the matter.
The disagreement surrounding abortion has always balanced on the dichotomy between the mother's rights and those of her fetus. While I believe that the mother's right to privacy is clear, what is ignored in the Roe decision is the question of whether any rights are assigned to the fetus. That's the question that really needs to be resolved, and there's nothing in the Constitution that can guide the Court in doing so.
While I'm pro-choice, I don't believe that the current decision should stand. Ultimately, the citizens need to decide, by the process of representative government. Abortion will always be a contentious issue, one which will probably never be resolved for all time, and states will likely revisit the issue with some regularity. However, I think that's preferable to the current winner-take-all approach to the Supreme Court that has been realized over the last thirty years. The court has lost credibility and become increasingly politicized as a result of the decision, with an overall weakening of the Court as a result.
posted by Ickster at 11:47 AM on October 17, 2005
I believe that a finding of a right to privacy was the correct finding, one that has been used appropriately in subsequent decisions. However, its application in Roe only answered half the question, and missed the crux of the matter.
The disagreement surrounding abortion has always balanced on the dichotomy between the mother's rights and those of her fetus. While I believe that the mother's right to privacy is clear, what is ignored in the Roe decision is the question of whether any rights are assigned to the fetus. That's the question that really needs to be resolved, and there's nothing in the Constitution that can guide the Court in doing so.
While I'm pro-choice, I don't believe that the current decision should stand. Ultimately, the citizens need to decide, by the process of representative government. Abortion will always be a contentious issue, one which will probably never be resolved for all time, and states will likely revisit the issue with some regularity. However, I think that's preferable to the current winner-take-all approach to the Supreme Court that has been realized over the last thirty years. The court has lost credibility and become increasingly politicized as a result of the decision, with an overall weakening of the Court as a result.
posted by Ickster at 11:47 AM on October 17, 2005
And whatever happened to this whole notion of "not legislating from the bench?" Roe is the law now - I would think changing that law would be "legislating from the bench".
Roe is not a law. The decision on the case is an interpretation of constitutional law, which basically determines which laws are acceptable and which aren't.
So, basically, any of the laws struck down by the Roe v. Wade decision are good examples of "legislating from the bench."
A state legislature passes a law, the constutionality is contested, the courts disallow it. That's how the perjorative term "legislating from the bench" arises, i.e. countering the will of "the people" or actually the people's representatives. Not that I agree with the term, but that's how some people see it.
I kinda agree with dios here. The Roe decision, while extremely practical, may have prevented state legislatures from taking action to protect legal abortion via legislation, which would be much more preferable, imo.
The problem, as I see it, is that you have a bad decision being used to rectify a bad situation. However, I think the defense of the bad decision is a self-defeating practice in the long run. I'd rather focus on passing laws to protect legal abortion, but that seems impossible in the U.S. system.
posted by mrgrimm at 11:49 AM on October 17, 2005
Roe is not a law. The decision on the case is an interpretation of constitutional law, which basically determines which laws are acceptable and which aren't.
So, basically, any of the laws struck down by the Roe v. Wade decision are good examples of "legislating from the bench."
A state legislature passes a law, the constutionality is contested, the courts disallow it. That's how the perjorative term "legislating from the bench" arises, i.e. countering the will of "the people" or actually the people's representatives. Not that I agree with the term, but that's how some people see it.
I kinda agree with dios here. The Roe decision, while extremely practical, may have prevented state legislatures from taking action to protect legal abortion via legislation, which would be much more preferable, imo.
The problem, as I see it, is that you have a bad decision being used to rectify a bad situation. However, I think the defense of the bad decision is a self-defeating practice in the long run. I'd rather focus on passing laws to protect legal abortion, but that seems impossible in the U.S. system.
posted by mrgrimm at 11:49 AM on October 17, 2005
It is the difference between a requirement and a proscription.
posted by dios at 2:35 PM EST on October 17 [!]
That's all well and good, but you didn't answer my question or address what you said initially.
If these things, like marriage, are "left to the states" then states should — again, using your reasoning — be allowed to restrict abortion for the same reason, since marriage is apparently not left to the states.
Since these issues are not left to the states, and since no state can do away with marriage (federal tax code would be involved, at least), your reasoning so far does not jibe with how the SCOTUS actually rules and has been ruling, apparently since its inception.
You may have a "case" that abortion should not be in the domain of the affairs of the federal courts. However, using your examples does not defend your opinion, and more to the point, SCOTUS rulings actually reinforce the converse.
posted by Rothko at 11:53 AM on October 17, 2005
posted by dios at 2:35 PM EST on October 17 [!]
That's all well and good, but you didn't answer my question or address what you said initially.
If these things, like marriage, are "left to the states" then states should — again, using your reasoning — be allowed to restrict abortion for the same reason, since marriage is apparently not left to the states.
Since these issues are not left to the states, and since no state can do away with marriage (federal tax code would be involved, at least), your reasoning so far does not jibe with how the SCOTUS actually rules and has been ruling, apparently since its inception.
You may have a "case" that abortion should not be in the domain of the affairs of the federal courts. However, using your examples does not defend your opinion, and more to the point, SCOTUS rulings actually reinforce the converse.
posted by Rothko at 11:53 AM on October 17, 2005
This is terrifying and disgusting. Donald Wildmon led the conference call? Let the Fitzgerald indictments fall where they may, and let the left feel comfortable telling themselves that Miers was not a worst-case scenario -- Bush can soon relax knowing that his true mission has been accomplished: a takeover of the Supreme Court by a bloodthirsty theocracy, the mirror image of the Islamofascist mullahs.
posted by digaman at 11:55 AM on October 17, 2005
posted by digaman at 11:55 AM on October 17, 2005
It has been said that politics in the United States mirrors the mentality of professional sports like football, baseball, et al.
That being said, it's particularly telling when the most blindly partisan (and I'm looking at *you*, Ann Coulter) of the bunch can actually get a bucket of icewater dumped on them with this nomination, so much so that they actually are able to stand up and say, "Wait a fucking minute here..."
I think any future president should be tested on his knowledge of the federalist papers. George definitely missed this part:
"The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body, whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations, candidates who had no other merit, than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."
It's like Hamilton looked into the future and saw this happening. I don't think Miers' views on abortion matter because she isn't going to be confirmed. Donning my tinfoil hat, I propose that the nomination was an inscrutably calculated strategic move. Taking said tinfoil hat off, I suppose it's merely an unforced error on the part of a vain, myopic man.
posted by mullingitover at 11:59 AM on October 17, 2005
That being said, it's particularly telling when the most blindly partisan (and I'm looking at *you*, Ann Coulter) of the bunch can actually get a bucket of icewater dumped on them with this nomination, so much so that they actually are able to stand up and say, "Wait a fucking minute here..."
I think any future president should be tested on his knowledge of the federalist papers. George definitely missed this part:
"The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body, whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations, candidates who had no other merit, than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."
It's like Hamilton looked into the future and saw this happening. I don't think Miers' views on abortion matter because she isn't going to be confirmed. Donning my tinfoil hat, I propose that the nomination was an inscrutably calculated strategic move. Taking said tinfoil hat off, I suppose it's merely an unforced error on the part of a vain, myopic man.
posted by mullingitover at 11:59 AM on October 17, 2005
Dios, I'm curious what you think of the 9th Amendment. I am not a lawyer, nor am I American, but it seems to me that the amendment would seem to indicate that a right to privacy could be interpreted in the future, even if it isn't explicitly enumerated.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It would seem to me that even a strict constructionist would have to accept that the original intent of this amendment is to allow the judiciary to read novel rights into the constitution. What other purpose could it possibly serve? Is it just there as filler?
I really don't see what is so inherently "weak" in reading a right to privacy into the constitution. Roe is certainly not the most unassailable decision the court has made, but this would not be an issue were it not for the strong contingent of religious conservatives who work to prohibit abortion once again.
posted by [expletive deleted] at 12:08 PM on October 17, 2005
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It would seem to me that even a strict constructionist would have to accept that the original intent of this amendment is to allow the judiciary to read novel rights into the constitution. What other purpose could it possibly serve? Is it just there as filler?
I really don't see what is so inherently "weak" in reading a right to privacy into the constitution. Roe is certainly not the most unassailable decision the court has made, but this would not be an issue were it not for the strong contingent of religious conservatives who work to prohibit abortion once again.
posted by [expletive deleted] at 12:08 PM on October 17, 2005
Awesome, a dios thread. Still waiting on this, by the way.
posted by Optimus Chyme at 12:08 PM on October 17, 2005
posted by Optimus Chyme at 12:08 PM on October 17, 2005
Requiring a state to allow abortion is no different than requiring a state to engage in capital punishment, requiring a state to allow smoking, requiring a state to permit relations within two degrees of consanguity. There is no constitutional basis for such an intrusion into state matters in any of those cases. However, if the state permits them, the federal government can regulate them based on constitutional principles as I addressed in an earlier point.
A few points. First, I don't think the "requiring a state to allow abortion" falls into the same category as "requiring a state to engage in capital punishment." One is the regulation of the exercise of a purportedly constitutional right, one is the imposition of a penalty for a crime. Your smoking or relations analogy is much closer. In any case, that's a side issue that doesn't really affect this discussion.
Second, the distinction between a requirement and a prohibition is an elusive one. When the Supreme Court decided Roe v. Wade, was it requiring the states to allow abortions, as you argue, or was it prohibiting the states from regulating abortions in the first trimester? Each of the example you provide can be stood on its head in just such a matter. Indeed, Section 1 of the Fourteenth Amendment itself belies your claim that Roe is a requirement, rather than a prohibition:
I think this second point regarding the distinction between requirements and prohibitions lays the groundwork for my third point: what is really at stake is a matter of interpretation. The question is emphatically not whether the Supreme Court's decision in Roe v. Wade is a requirement or prohibition; it is, of course, both. Rather, the question is two-fold: (1) Is there a constitutionally-grounded right to privacy, including a right to abortion, and (2) does the state's compelling interest in regulating abortion supercede that right? That is the analysis, roughly, that the Court engaged in deciding Roe. Your real argument, stripped of the semantic quibbling between requirement and prohibition, is that there is no constitutionally-grounded argument that a right to privacy exists, and that such a right includes a right to abortion.
That's a perfectly legitimate argument to make, and as others have noted, does not directly implicate the moral and policy wisedom of regulation limiting abortions. Nonetheless, let's address this argument directly, rather than dancing around it. An argument that such a right does not exist, particularly in light of a long line of precedent that says otherwise, needs to do more than just note that the text does not reference abortion. Any number of rights are protected under the Constitution, but are not specifically enumerated. One such example: flag burning. Under your theory, it would appear, the state's could permissably criminalize flag burning. The Supreme Court has held, nonetheless, that flag burning is protected First Amendment activity. Why is abortion different?
Please note, I'm not arguing that it is or isn't, I'm simply trying to cut through the semantic smokescreen. This argument should be about whether or not such a right is firmly grounded in the constitution, and not whether it is a "requirement" or a "prohibition."
posted by monju_bosatsu at 12:17 PM on October 17, 2005 [1 favorite]
A few points. First, I don't think the "requiring a state to allow abortion" falls into the same category as "requiring a state to engage in capital punishment." One is the regulation of the exercise of a purportedly constitutional right, one is the imposition of a penalty for a crime. Your smoking or relations analogy is much closer. In any case, that's a side issue that doesn't really affect this discussion.
Second, the distinction between a requirement and a prohibition is an elusive one. When the Supreme Court decided Roe v. Wade, was it requiring the states to allow abortions, as you argue, or was it prohibiting the states from regulating abortions in the first trimester? Each of the example you provide can be stood on its head in just such a matter. Indeed, Section 1 of the Fourteenth Amendment itself belies your claim that Roe is a requirement, rather than a prohibition:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Justice Blackmun's opinion echoes that prohibitive language, when he writes: "Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Justice Blackmun is not requiring the states to do anything; instead, he is prohibiting the states from regulating unless the regulation passes constitutional muster.
I think this second point regarding the distinction between requirements and prohibitions lays the groundwork for my third point: what is really at stake is a matter of interpretation. The question is emphatically not whether the Supreme Court's decision in Roe v. Wade is a requirement or prohibition; it is, of course, both. Rather, the question is two-fold: (1) Is there a constitutionally-grounded right to privacy, including a right to abortion, and (2) does the state's compelling interest in regulating abortion supercede that right? That is the analysis, roughly, that the Court engaged in deciding Roe. Your real argument, stripped of the semantic quibbling between requirement and prohibition, is that there is no constitutionally-grounded argument that a right to privacy exists, and that such a right includes a right to abortion.
That's a perfectly legitimate argument to make, and as others have noted, does not directly implicate the moral and policy wisedom of regulation limiting abortions. Nonetheless, let's address this argument directly, rather than dancing around it. An argument that such a right does not exist, particularly in light of a long line of precedent that says otherwise, needs to do more than just note that the text does not reference abortion. Any number of rights are protected under the Constitution, but are not specifically enumerated. One such example: flag burning. Under your theory, it would appear, the state's could permissably criminalize flag burning. The Supreme Court has held, nonetheless, that flag burning is protected First Amendment activity. Why is abortion different?
Please note, I'm not arguing that it is or isn't, I'm simply trying to cut through the semantic smokescreen. This argument should be about whether or not such a right is firmly grounded in the constitution, and not whether it is a "requirement" or a "prohibition."
posted by monju_bosatsu at 12:17 PM on October 17, 2005 [1 favorite]
To expand on my point, interpreting the constitution is a controversial act in itself. There are many differing approaches, and there is much room for debate among constitutional scholars in any number of areas.
While Dios is fairly uniquely qualified in this debate, he cannot claim with authority to know how the constitution should be interpreted and applied, especially when he is disagreeing with many Supreme Court justices and constitutional scholars.
posted by [expletive deleted] at 12:19 PM on October 17, 2005
While Dios is fairly uniquely qualified in this debate, he cannot claim with authority to know how the constitution should be interpreted and applied, especially when he is disagreeing with many Supreme Court justices and constitutional scholars.
posted by [expletive deleted] at 12:19 PM on October 17, 2005
Even if Miers is confirmed, and even if the opportunity to vote to overturn Roe comes up, and even if she does vote to overturn it, isn't the tally still 5-4 in favor of keeping it, at least until one of the "liberals" retires? I was under the impression that, for the last 11 years, it's been at 6-3, with O'Connor for and Rehnquist against.
Did anyone on the conference call think to ask if Miers would recuse herself on cases involving executive privilege w/in the Bush Administration? How much oversight she believes Congress ought to have over the White House in "wartime?"
posted by aaronetc at 12:20 PM on October 17, 2005
Did anyone on the conference call think to ask if Miers would recuse herself on cases involving executive privilege w/in the Bush Administration? How much oversight she believes Congress ought to have over the White House in "wartime?"
posted by aaronetc at 12:20 PM on October 17, 2005
dios: "I wish that he would have picked a more qualified person for the job. I am on record, from the first day and post on this topic, that I thought it was a bad nomination."
So you'd say that she's right on Roe, but for all the wrong reasons?
I have a question for you. Are there any judges out there that you respect who would consider Roe to be not only settled law, but well-decided? Could you respect a judge who argues that Roe is legally and Constitutionally valid?
posted by fleacircus at 12:23 PM on October 17, 2005
So you'd say that she's right on Roe, but for all the wrong reasons?
I have a question for you. Are there any judges out there that you respect who would consider Roe to be not only settled law, but well-decided? Could you respect a judge who argues that Roe is legally and Constitutionally valid?
posted by fleacircus at 12:23 PM on October 17, 2005
O'Connor supported Roe with some limitations. Kennedy is the other moderate justice that supports it.
The current justices that would likely vote to overturn Roe are Roberts (formerly Rehnquist), Scalia and Thomas.
posted by [expletive deleted] at 12:26 PM on October 17, 2005
The current justices that would likely vote to overturn Roe are Roberts (formerly Rehnquist), Scalia and Thomas.
posted by [expletive deleted] at 12:26 PM on October 17, 2005
dios: From a state's rights perspective, I agree with many of your points regarding the constitutional powers of the federal government (that is, putting aside for now the broader questions of whether or not these particular constitutional divisions of state and federal power are advisable in the first place). However, I'm curious to hear your views on the SCOUTUS' recent decisions regarding medicinal marijuana programs in California and Oregon. I find it very difficult to frame a constitutional argument that can account for these decisions (interstate commerce, I should think, would only apply to laws directly related to trafficking by any strict constitutional interpretation). What's your position on this sort of "judicial activism" (and for that matter, federal drug laws generally). Understand: I'm not looking for any moral arguments one way or the other (and I don't assume I already know your position on this; I'm just trying to get a sense for where exactly you see the limits of state's rights vs. federal authority, and what specific constitutional considerations inform them). I know this may seem like a tangent, but since so much of this discussion seems to come down to questions pertaining to constitutional divisions of power for you, I'm interested to hear your POV.
posted by all-seeing eye dog at 12:29 PM on October 17, 2005
posted by all-seeing eye dog at 12:29 PM on October 17, 2005
[expletive deleted]: The contours of the Ninth Amendment is one of the most perplexing topics in constitutional interpretation. Forests have fell with the amount of ink that has been expunged on the topic in books and law reviews.
As far as a how strict constructionists would view it, I would submit that this is the best interpretation I have read is as follows:
"The ninth was in the original Bill of Rights and states simply, if enigmatically, that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people." The eight proceeding amendments, of course, specify rights retained by the people, and the immediately following and last amendment, the tenth, states that "the powers delegated by it to the States, are reserved to the States respectively, or to the people."
There is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution... Nothing could be clearer, however, than that, whatever purpose the ninth was intended to serve, the creation of a mandate to invent constitutional rights was not one of them. The language of the amendment itself contradicts that notion. It states that the enumeration of some rights shall not be construed to deny or disparage other retained by the people. Surely, if a mandate to judges had been intended, matters could have been put more clearly. James Madison, who wrote the amendments, and who wrote with absolute clarity elsewhere, had he meant to put a freehand power concerning rights in the hands of judges, could have easily drafted an amendment that said something like "The Courts shall determine what rights, in addition to those enumerated here, are retained by the people," or "The courts shall created new rights as required by the principles of the republican form of government," or "The American people, believing in the law of nature and a law of nature's God, delegate their courts the task of determining what rights, other than those enumerated here, are retained by the people." Madison wrote none of those things, and the conventions ratified none of them. If the Founders envisioned such a role for the courts, they were remarkably adroit in avoiding saying so.
What, then can the ninth amendment be taken to mean? The words "retained by the people" is the key. "Retained by the people" how? One suggestion, advanced by Russel Caplan and supported by historical evidence, is that the people retained certain rights because they were guaranteed by the various state constitutions, statutes, and common law. Thus, the enumeration of certain rights in the federal Constitution was not to be taken to mean that the rights promised by state constitutions and laws were to be denied or disparaged.
This meaning is not only grammatically correct, it also fits the placement of the ninth amendment right before the tenth and after the eight substantive guarantees of rights. The tenth amendment is clearly a guarantee of federalism. It confirms that federal powers were intended to be limited and that the powers not lodged in the national government remained with the states, if the states had such powers under their own constitutions, and if not, the powers were still held by the people. The ninth amendment appears to serve a parallel function by guaranteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limited set of rights were guaranteed by the federal charter. Both the ninth and tenth amendments appear to be protections of the states and the people against the national government. The anti-Federalists feared the power of the United States (and the Supreme Court), and Madison had promised them amendments to allay their fears.
This is also supported by Madison's explanation of the ninth amendment to Congress:
posted by dios at 12:32 PM on October 17, 2005
As far as a how strict constructionists would view it, I would submit that this is the best interpretation I have read is as follows:
"The ninth was in the original Bill of Rights and states simply, if enigmatically, that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people." The eight proceeding amendments, of course, specify rights retained by the people, and the immediately following and last amendment, the tenth, states that "the powers delegated by it to the States, are reserved to the States respectively, or to the people."
There is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution... Nothing could be clearer, however, than that, whatever purpose the ninth was intended to serve, the creation of a mandate to invent constitutional rights was not one of them. The language of the amendment itself contradicts that notion. It states that the enumeration of some rights shall not be construed to deny or disparage other retained by the people. Surely, if a mandate to judges had been intended, matters could have been put more clearly. James Madison, who wrote the amendments, and who wrote with absolute clarity elsewhere, had he meant to put a freehand power concerning rights in the hands of judges, could have easily drafted an amendment that said something like "The Courts shall determine what rights, in addition to those enumerated here, are retained by the people," or "The courts shall created new rights as required by the principles of the republican form of government," or "The American people, believing in the law of nature and a law of nature's God, delegate their courts the task of determining what rights, other than those enumerated here, are retained by the people." Madison wrote none of those things, and the conventions ratified none of them. If the Founders envisioned such a role for the courts, they were remarkably adroit in avoiding saying so.
What, then can the ninth amendment be taken to mean? The words "retained by the people" is the key. "Retained by the people" how? One suggestion, advanced by Russel Caplan and supported by historical evidence, is that the people retained certain rights because they were guaranteed by the various state constitutions, statutes, and common law. Thus, the enumeration of certain rights in the federal Constitution was not to be taken to mean that the rights promised by state constitutions and laws were to be denied or disparaged.
This meaning is not only grammatically correct, it also fits the placement of the ninth amendment right before the tenth and after the eight substantive guarantees of rights. The tenth amendment is clearly a guarantee of federalism. It confirms that federal powers were intended to be limited and that the powers not lodged in the national government remained with the states, if the states had such powers under their own constitutions, and if not, the powers were still held by the people. The ninth amendment appears to serve a parallel function by guaranteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limited set of rights were guaranteed by the federal charter. Both the ninth and tenth amendments appear to be protections of the states and the people against the national government. The anti-Federalists feared the power of the United States (and the Supreme Court), and Madison had promised them amendments to allay their fears.
This is also supported by Madison's explanation of the ninth amendment to Congress:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights that were not placed in that enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and where consequently insecure.So, [expletive deleted], sorry about length, but does that answer your question?
posted by dios at 12:32 PM on October 17, 2005
The State-by-State Consequences of Overturning Roe v. Wade (PDF)
posted by homunculus at 12:34 PM on October 17, 2005
posted by homunculus at 12:34 PM on October 17, 2005
Rothko,
I think you're missing dios' point. The idea that "marriage is left to the states" goes as far as giving states the right to choose whether or not to recognize marriage at all. If a state chooses to recognize it, they must do so in a certain manner.
A close analog (though not including any "inalienable rights"), I think, is software license agreements: you, as the user, can choose whether or not to use a piece of softwae. If you elect to use, you then agree to only use it in a certain manner (dictated by the terms of the license agreement). The company cannot make you use the software, but if you do, they can make you use it only in certain ways.
I don't really see any sort of personal view to what dios is saying; it looks to me (as a non-lawyer) like a neutral recitation of the forces at work. You could spend days arguing with dios about it and you'd be arguing right past each other, because it seems that you're talking about different things: you, about the way you think it should be, or how it should be in the ideal, and dios, about how it actually is.
posted by Godbert at 12:36 PM on October 17, 2005
I think you're missing dios' point. The idea that "marriage is left to the states" goes as far as giving states the right to choose whether or not to recognize marriage at all. If a state chooses to recognize it, they must do so in a certain manner.
A close analog (though not including any "inalienable rights"), I think, is software license agreements: you, as the user, can choose whether or not to use a piece of softwae. If you elect to use, you then agree to only use it in a certain manner (dictated by the terms of the license agreement). The company cannot make you use the software, but if you do, they can make you use it only in certain ways.
I don't really see any sort of personal view to what dios is saying; it looks to me (as a non-lawyer) like a neutral recitation of the forces at work. You could spend days arguing with dios about it and you'd be arguing right past each other, because it seems that you're talking about different things: you, about the way you think it should be, or how it should be in the ideal, and dios, about how it actually is.
posted by Godbert at 12:36 PM on October 17, 2005
Thanks Dios, that certainly provides a differing view I have never been exposed too. I will do a little more reading before I respond in more detail.
posted by [expletive deleted] at 12:38 PM on October 17, 2005
posted by [expletive deleted] at 12:38 PM on October 17, 2005
I don't have much technical information to add. I just wanted to say that this is being on of the more level-headed discussions on abortion I've seen around here in awhile. Dios is doing a good job presenting his side of the constitutional debate.
I myself favor the idea of privacy as being implied by the 14th etc, but do realize there is no explicit right to privacy per se. To qoute: "nor shall any State deprive any person of life, liberty, or property, without due process of law." To deprive someone of a reasonable zone of privacy is to deny them liberty. Abortion, according to the court, falls within that zone.
posted by elwoodwiles at 12:38 PM on October 17, 2005
I myself favor the idea of privacy as being implied by the 14th etc, but do realize there is no explicit right to privacy per se. To qoute: "nor shall any State deprive any person of life, liberty, or property, without due process of law." To deprive someone of a reasonable zone of privacy is to deny them liberty. Abortion, according to the court, falls within that zone.
posted by elwoodwiles at 12:38 PM on October 17, 2005
Dios, before I go further with this line, let me make sure I understand you. You can use big fancy lawyer words because I may not be big or fancy, but I'm a lawyer with about 15 years' experience and though I am a commercial litigator with a specialty in intellectual property, not a constitutional lawyer (very few people have the luxury of claiming they do that kind of work exclusively), I've litigated some First amendment and commercial speech cases and done some pro-bono death penalty work; in other words I've glanced at the Constitution more recently than my Con Law classes.
So with that in mind -- and that's just so we can get the "you non-lawyers don't understand dios!" snarking out of the way -- are you trying to draw the distinction between enumerated and non-enumerated rights? In other words, is it your argument that my examples (Miranda, probable cause, trial by jury) can be imposed on the States because they are enumerated rights and other examples (privacy, marriage, birth control) are un-enumerated? I can't see any other distinction based on what you've written.
I'm ready to engage with you about that, but if that's not what you mean I don't want to waste everyone's time. Somebody quoted you as saying:
Saying that the federal government can regulate actions taken by the state is not to say that the federal government can require that an action exist in a state unless the action has a constitutional basis, e.g. voting.
I'm not entirely sure what you mean by "a constitutional basis" here, because of course the very basis for the holding of Roe is that there IS a constitutional basis for a right to privacy embodied in the Bill of Rights. So I think perhaps what you mean is an explicit constitutional basis. Am I on the right track? If so, this is, to a great extent, a conversation about Griswold and I'm ready to have that conversation, I just want to make sure we're on the same page.
posted by The Bellman at 12:40 PM on October 17, 2005
So with that in mind -- and that's just so we can get the "you non-lawyers don't understand dios!" snarking out of the way -- are you trying to draw the distinction between enumerated and non-enumerated rights? In other words, is it your argument that my examples (Miranda, probable cause, trial by jury) can be imposed on the States because they are enumerated rights and other examples (privacy, marriage, birth control) are un-enumerated? I can't see any other distinction based on what you've written.
I'm ready to engage with you about that, but if that's not what you mean I don't want to waste everyone's time. Somebody quoted you as saying:
Saying that the federal government can regulate actions taken by the state is not to say that the federal government can require that an action exist in a state unless the action has a constitutional basis, e.g. voting.
I'm not entirely sure what you mean by "a constitutional basis" here, because of course the very basis for the holding of Roe is that there IS a constitutional basis for a right to privacy embodied in the Bill of Rights. So I think perhaps what you mean is an explicit constitutional basis. Am I on the right track? If so, this is, to a great extent, a conversation about Griswold and I'm ready to have that conversation, I just want to make sure we're on the same page.
posted by The Bellman at 12:40 PM on October 17, 2005
Oh, one question, Dios: does "General Government" in the sense Madison used before Congress refer to the federal government specifically, or to both federal and state authority?
posted by [expletive deleted] at 12:42 PM on October 17, 2005
posted by [expletive deleted] at 12:42 PM on October 17, 2005
However, I'm curious to hear your views on the SCOUTUS' recent decisions regarding medicinal marijuana programs in California and Oregon
I think that opinion was wrongly decided as a jurisprudential matter. I would agree with both the dissents of O'Connor and Thomas. The United States was supposed to be a federal structure with little laboratories of democracy. A state should be free to be a pot-smoking, no-seatbelt-wearing, nudist camp, if it is so voted on by the populace. And a state should be free to be the opposite. Like Utah. Little laboratories of democracy.
Are there any judges out there that you respect who would consider Roe to be not only settled law, but well-decided?
I don't know any off the top of my head, and I'd have to read their argument before saying so. But I think it is widely considered, as a purely legal matter, to be a bad decision. I'm pretty sure that Tribe agrees with the decision, but I don't respect his interpretive stance. But assuming someone could construct an argument, I have no problem respecting them because I do not see the case through an outcomes-based policy issue.
As to monju: good points, all. I certainly didn't intend to get off on that tangent about proscriptions and do firmly believe the primary problem was a raw naked power grab by the Court that was not based in any interpretive manner (as I hope my prior comments indicate). As for the difference between flag-burning and abortion, I would say that at least an argument can be made that flag-burning is political speech, and political speech is expressly protected by the First Amendment. I don't see how you can define abortion to be any constitutionally protected right, and I think the tortured argument by Blackman indicates that. The Court relied on a tenuous extension of the holding in Griswald which was itself a tenuous ruling. If there was a clear right at stake, surely the opinion could have linked it up better. But as it were, it was linked to a general and undefined right to privacy, which was, admittedly, not in the Constitution. In that regard, whatever the propriety of Texas v. Johnson, it at least has a stronger interpretive basis as it is focused on an actual enumerated right.
posted by dios at 12:45 PM on October 17, 2005
I think that opinion was wrongly decided as a jurisprudential matter. I would agree with both the dissents of O'Connor and Thomas. The United States was supposed to be a federal structure with little laboratories of democracy. A state should be free to be a pot-smoking, no-seatbelt-wearing, nudist camp, if it is so voted on by the populace. And a state should be free to be the opposite. Like Utah. Little laboratories of democracy.
Are there any judges out there that you respect who would consider Roe to be not only settled law, but well-decided?
I don't know any off the top of my head, and I'd have to read their argument before saying so. But I think it is widely considered, as a purely legal matter, to be a bad decision. I'm pretty sure that Tribe agrees with the decision, but I don't respect his interpretive stance. But assuming someone could construct an argument, I have no problem respecting them because I do not see the case through an outcomes-based policy issue.
As to monju: good points, all. I certainly didn't intend to get off on that tangent about proscriptions and do firmly believe the primary problem was a raw naked power grab by the Court that was not based in any interpretive manner (as I hope my prior comments indicate). As for the difference between flag-burning and abortion, I would say that at least an argument can be made that flag-burning is political speech, and political speech is expressly protected by the First Amendment. I don't see how you can define abortion to be any constitutionally protected right, and I think the tortured argument by Blackman indicates that. The Court relied on a tenuous extension of the holding in Griswald which was itself a tenuous ruling. If there was a clear right at stake, surely the opinion could have linked it up better. But as it were, it was linked to a general and undefined right to privacy, which was, admittedly, not in the Constitution. In that regard, whatever the propriety of Texas v. Johnson, it at least has a stronger interpretive basis as it is focused on an actual enumerated right.
posted by dios at 12:45 PM on October 17, 2005
Dios may be a lawyer, but expletive is right in that dios's qualifications don't make the subject moot.
That said, a whole bunch of you are completely out of your depth here, and -- loathe as I am to defend dios -- you're making yourselves look foolish.
I have to run, but by way of summary I'll at least provide a link to an approximation of my position on Roe, and return to discuss it later. For what it's worth, I think that dios is flat wrong: justifications here, here, and here. Catch you all soon.
posted by spiderwire at 12:53 PM on October 17, 2005
That said, a whole bunch of you are completely out of your depth here, and -- loathe as I am to defend dios -- you're making yourselves look foolish.
I have to run, but by way of summary I'll at least provide a link to an approximation of my position on Roe, and return to discuss it later. For what it's worth, I think that dios is flat wrong: justifications here, here, and here. Catch you all soon.
posted by spiderwire at 12:53 PM on October 17, 2005
dios: Nothing could be clearer, however, than that, whatever purpose the ninth was intended to serve, the creation of a mandate to invent constitutional rights was not one of them.
I agree with what you said here, but not what you meant (go figure). I don't think the Ninth Amendment could create a Constitutional right, which I take to mean a right specifically enumerated in the Constitution and subsequent amendments.
My reading of the Ninth is that the Founder's explicitely listed several rights as a protection of them, because those issues were significant among the reasons for the revolution. I feel that they were listed explicitely so that there was no need to assume the rights existed. The Ninth Amendment, to me, says that just because some right are listed, does not mean that others not listed aren't important or non-existant.
After all, nothing in the Constitution, nor any state constitutions that I'm aware of, specifically gives me the right to breathe, but I imagine most people would find it outrageous to interpret that fact as meaning the federal government could regulate breathing. (Yes, it's an "appeal to ridicule," but it gets my idea across, I think.)
So I don't see the Ninth Amendment as being used a basis for creating new rights in the courts; rather, the Ninth Amendment created all rights, and the job of the courts should be to balance them all against each other (e.g., my right to swing my fist vs. your right to not be punched in the face).
In the context of my last post here, I hope that I'm correct in assuming that much of what dios mentioned on this topic is speculative, and not established policy. If I'm wrong, well, that's what I get for having not gone to law school (yet?).
posted by Godbert at 12:54 PM on October 17, 2005
I agree with what you said here, but not what you meant (go figure). I don't think the Ninth Amendment could create a Constitutional right, which I take to mean a right specifically enumerated in the Constitution and subsequent amendments.
My reading of the Ninth is that the Founder's explicitely listed several rights as a protection of them, because those issues were significant among the reasons for the revolution. I feel that they were listed explicitely so that there was no need to assume the rights existed. The Ninth Amendment, to me, says that just because some right are listed, does not mean that others not listed aren't important or non-existant.
After all, nothing in the Constitution, nor any state constitutions that I'm aware of, specifically gives me the right to breathe, but I imagine most people would find it outrageous to interpret that fact as meaning the federal government could regulate breathing. (Yes, it's an "appeal to ridicule," but it gets my idea across, I think.)
So I don't see the Ninth Amendment as being used a basis for creating new rights in the courts; rather, the Ninth Amendment created all rights, and the job of the courts should be to balance them all against each other (e.g., my right to swing my fist vs. your right to not be punched in the face).
In the context of my last post here, I hope that I'm correct in assuming that much of what dios mentioned on this topic is speculative, and not established policy. If I'm wrong, well, that's what I get for having not gone to law school (yet?).
posted by Godbert at 12:54 PM on October 17, 2005
Rothko: You aren't paying attention. You cite Blackmun to say Dios' opinion is incorrect. Dios has said that he disagrees with the logic followed in the Roe decision - he's saying he disagrees with Blackmun.
The point he is making is that the Constitution does not say that the states must allow abortion - that the Constitution leaves the issue to the individual states. The court in Roe is saying that the Constitution does require the states to allow abortion.
If a state decides to allow abortion the federal government can step in to ensure that they do not apply the law allowing abortion in a discriminatory way.
posted by Carbolic at 1:01 PM on October 17, 2005
The point he is making is that the Constitution does not say that the states must allow abortion - that the Constitution leaves the issue to the individual states. The court in Roe is saying that the Constitution does require the states to allow abortion.
If a state decides to allow abortion the federal government can step in to ensure that they do not apply the law allowing abortion in a discriminatory way.
posted by Carbolic at 1:01 PM on October 17, 2005
Godbert, I think you may have it backwards. I was actually describing how it actually is, while dios was describing his ideal of how the courts should act (namely that abortion is a state's rights issue). He is welcome to his opinion, but the facts as they are do not bear out the crux of his argument, which is that states are "for the most part" allowed to do whatever they like, and therefore abortion should be a state's rights issue for the same reason.
Unfortunately, at least for the terms which he brought up (capital punishment, euthanasia, marriage rights, etc.) a cursory search shows that states can't simply do whatever they please, and so abortion rights — again, using his reasoning — could just as well be another matter for SCOTUS to address, despite his personal objections either to abortion or to the procedure being protected by Roe vs. Wade.
The general objection to abortion being considered by the SCOTUS seems to come down to an objection of consideration of privacy rights by said court. Miers won't get confirmed, but I'm more worried about the precedent that will likely be set by Chief Justice Roberts, who as a Federalist has a clear political agenda from the get-go regarding privacy rights and who would probably strike down Roe vs. Wade on that basis alone.
posted by Rothko at 1:02 PM on October 17, 2005
Unfortunately, at least for the terms which he brought up (capital punishment, euthanasia, marriage rights, etc.) a cursory search shows that states can't simply do whatever they please, and so abortion rights — again, using his reasoning — could just as well be another matter for SCOTUS to address, despite his personal objections either to abortion or to the procedure being protected by Roe vs. Wade.
The general objection to abortion being considered by the SCOTUS seems to come down to an objection of consideration of privacy rights by said court. Miers won't get confirmed, but I'm more worried about the precedent that will likely be set by Chief Justice Roberts, who as a Federalist has a clear political agenda from the get-go regarding privacy rights and who would probably strike down Roe vs. Wade on that basis alone.
posted by Rothko at 1:02 PM on October 17, 2005
dios: Thanks! I'm actually really fond of the little laboratories of democracy model, myself... I just wish more so-called strict interpretationists could see the log in their own eye, so to speak, when it comes to these issues. None of the competing political interests has a monopoly on this kind of judicial activism, unfortunately.
Based on my novice understanding of constitutional law, I'm inclined to agree that dios' position does appear to apply a consistent, fair-minded standard of federal authority (although a line of counter-argument might focus on the extent to which it's a legitimate role of the judicial branch to reinterpret the scope of constitutional protections from time to time in light of changing historical realities that couldn't have been anticipated when the Bill of Rights was originally drafted).
posted by all-seeing eye dog at 1:05 PM on October 17, 2005
Based on my novice understanding of constitutional law, I'm inclined to agree that dios' position does appear to apply a consistent, fair-minded standard of federal authority (although a line of counter-argument might focus on the extent to which it's a legitimate role of the judicial branch to reinterpret the scope of constitutional protections from time to time in light of changing historical realities that couldn't have been anticipated when the Bill of Rights was originally drafted).
posted by all-seeing eye dog at 1:05 PM on October 17, 2005
a.s.e dog: Based on my novice understanding of constitutional law, I'm inclined to agree that dios' position does appear to apply a consistent, fair-minded standard of federal authority
Based on my somewhat novice understanding, I'd point out that the "laboratories of democracy" phrasing is an ideological red herring. Both sides of the aisle regularly invoke the shining principle of federalism to justify their arguments, but in practice that doesn't resolve their fundamental disagreements about moral rights and wrongs where the federal government is compelled or allowed to intervene in misguided "democratic experiments."
Regardless of whether dios is right or wrong, his invocation of this little republican (little-r republican) fantasyland isn't particularly relevant. Let's talk about the "technical points," shall we?
(In all fairness to dios, I don't think that he intended the "laboratories" phrase to be central to his argument, but if someone else is going to start fawning over it, I'd just as soon nip it in the bud...)
posted by spiderwire at 1:12 PM on October 17, 2005
Based on my somewhat novice understanding, I'd point out that the "laboratories of democracy" phrasing is an ideological red herring. Both sides of the aisle regularly invoke the shining principle of federalism to justify their arguments, but in practice that doesn't resolve their fundamental disagreements about moral rights and wrongs where the federal government is compelled or allowed to intervene in misguided "democratic experiments."
Regardless of whether dios is right or wrong, his invocation of this little republican (little-r republican) fantasyland isn't particularly relevant. Let's talk about the "technical points," shall we?
(In all fairness to dios, I don't think that he intended the "laboratories" phrase to be central to his argument, but if someone else is going to start fawning over it, I'd just as soon nip it in the bud...)
posted by spiderwire at 1:12 PM on October 17, 2005
kosem: are you making fun of the fact that I posted links and ran? :)
As you can see, I got sucked back in... my plans were abrogated.
posted by spiderwire at 1:14 PM on October 17, 2005
As you can see, I got sucked back in... my plans were abrogated.
posted by spiderwire at 1:14 PM on October 17, 2005
Dickbert: at least for the terms which he brought up (capital punishment, euthanasia, marriage rights, etc.) a cursory search shows that states can't simply do whatever they please
Dios did not say they could do as they please. You've said he did but he didn't.
Dios said that it was up to the states to choose whether or not they would have, for example, capital punishment. The Constitution does not force them to. They can choose to have capital punishment or they can choose not to. (You are correct that in the event they choose to have capital punishment the federal governement does have some control over the way it is applied.)
posted by Carbolic at 1:43 PM on October 17, 2005
Dios did not say they could do as they please. You've said he did but he didn't.
Dios said that it was up to the states to choose whether or not they would have, for example, capital punishment. The Constitution does not force them to. They can choose to have capital punishment or they can choose not to. (You are correct that in the event they choose to have capital punishment the federal governement does have some control over the way it is applied.)
posted by Carbolic at 1:43 PM on October 17, 2005
This is a great discussion, and I appreciate the many great links.
Much smarter people have said much smarter things, but I'd only chime in to add that legal decisions are rarely made in a non-political vacuum. Bush is trying to walk a tightrope between his ego and the religious right, and the latter has finally called bullshit. I don't think it's a Rovean ploy though--it's Bush having his Clinton "legacy" moment, and it's blown up in his face.
Republicans have once again won the rhetoric battle when it comes to invective against "activist" judges. This is code for judges who stray from White House talking points. Bush v. Gore? Schiavo? Euthanasia in Oregon? Pot in California? It's telling that Reagan era "states rights" discourse has become more muddled, precisely because this administration doesn't give a damn about state sovereignty, but it's maddening that they get political mileage out of it, still. On this point, people need to wake up and realize the total disingenuity of this administration.
As for the right to privacy, I'd agree that it's high time for a SCOTUS decision that enumerates this explicitly. Then again, I thought IV already did this. And I'd agree that Roe v. Wade is a "bad" decision in that it really put off some critical issues re: individual privacy vs. states rights vs. Federal law that only add to more noise (most Americans, IMHO, still fail to realize that abortion isn't the central issue in Roe).
As for the argument that only lawyers can discuss law? I'll grant that I'm not much help in a copyright case, but a working understanding of the Bill of Rights and later amendments isn't that difficult--it's necessary, especially living in these times.
posted by bardic at 1:49 PM on October 17, 2005
Much smarter people have said much smarter things, but I'd only chime in to add that legal decisions are rarely made in a non-political vacuum. Bush is trying to walk a tightrope between his ego and the religious right, and the latter has finally called bullshit. I don't think it's a Rovean ploy though--it's Bush having his Clinton "legacy" moment, and it's blown up in his face.
Republicans have once again won the rhetoric battle when it comes to invective against "activist" judges. This is code for judges who stray from White House talking points. Bush v. Gore? Schiavo? Euthanasia in Oregon? Pot in California? It's telling that Reagan era "states rights" discourse has become more muddled, precisely because this administration doesn't give a damn about state sovereignty, but it's maddening that they get political mileage out of it, still. On this point, people need to wake up and realize the total disingenuity of this administration.
As for the right to privacy, I'd agree that it's high time for a SCOTUS decision that enumerates this explicitly. Then again, I thought IV already did this. And I'd agree that Roe v. Wade is a "bad" decision in that it really put off some critical issues re: individual privacy vs. states rights vs. Federal law that only add to more noise (most Americans, IMHO, still fail to realize that abortion isn't the central issue in Roe).
As for the argument that only lawyers can discuss law? I'll grant that I'm not much help in a copyright case, but a working understanding of the Bill of Rights and later amendments isn't that difficult--it's necessary, especially living in these times.
posted by bardic at 1:49 PM on October 17, 2005
Dickbert: at least for the terms which he brought up (capital punishment, euthanasia, marriage rights, etc.) a cursory search shows that states can't simply do whatever they please
Dios did not say they could do as they please. You've said he did but he didn't.
He said that it was up to the states to choose whether or not they would have, for example, capital punishment. The Constitution does not force them to. They can choose to have capital punishment or they can choose not to. (You are correct that in the event they choose to have capital punishment the federal governement does have some control over the way it is applied.)
If you'd pay a little closer attention it would greatly reduce the noise factor.
posted by Carbolic at 2:11 PM on October 17, 2005
Dios did not say they could do as they please. You've said he did but he didn't.
He said that it was up to the states to choose whether or not they would have, for example, capital punishment. The Constitution does not force them to. They can choose to have capital punishment or they can choose not to. (You are correct that in the event they choose to have capital punishment the federal governement does have some control over the way it is applied.)
If you'd pay a little closer attention it would greatly reduce the noise factor.
posted by Carbolic at 2:11 PM on October 17, 2005
Setting the legal stuff aside, I think that most liberals don't understand how damaging to liberalism and feminism the Roe decision was. Abortion as a solution to problems caused by sexism and the disregard for human beings that corporations demonstrate in the way they treat thier workers was always a messy, violent, bad one, and in accpeting it not only as a temporary fix, but also a sacrosanct position helped cause the backlash against feminism and the fall of the Democrats from power.
Accepting violence as a means to an end puts feminism in self-contradiction -- it is a rather patriarchal solution to problems caused by sexism. What can be more phallocentric and symbolic of all that is wrong with partiarchy than the cold instruments of medical technology inserted into a woman's womb for the purposes of death?
And it goes against the logic that underpins the rest of the liberal ideology. As a result, instead of waging the longer and more difficult war of getting the country to quit penalizing single mothers, and to make deadbeat dads pay up, and to provide real options for mothers who can't afford to bear and have children, and to make corporations pay living wages that can support familes, we settled for killing living beings.
What's worse, to denfend it, we have been asked to embrace contradictory, confusing philosophies and bad science in order to justify supporting abortion. Even worse, abortion does nothing to solve the root problems of sexism and the greed of unfettered capitalism. It is, at best, a band-aid, but it involves accepting violence as a solution.
I don't vote for "pro-life" candidates, for multiple reasons (they are, after all, not really "pro-life" in most cases and thier position is even more dangerous and contradictory) but I have always felt uncomfortable when this topic is brought up, mainly because I consider it liberalism's great shame.
The problem of abortion won't be solved by making it legal or illegal because the problem is not abortion itself, but rather how our culture still treats women as second-class citizens, and how the corporate culture in our country it truly anti-family, in that it penalizes workers for having families. It is also a race-releated problem, and a class-related problem, and were liberals to quit kowtowing to Washington insiderism and corporations and actually address and solve those problems, then we'd find people wouldn't need abortions.
(To wit, under Clinton, who could hardly be called a "liberal" president, abortions reached a 24 year low -- because the economy was good; people had jobs, the nation was helping poor people, etc. )
This issue has been used by Republicans to gain the upper hand in the rhetorical battle over how words like moral get defined in the public sphere. Why is it that George Bush, architect of a disasterous and stupid war and abandoner of that war's veterens is percieved as more moral than his oppoenent in the last election, John Kerry? Because the Democrats left themselves wide open to a thirty-year media campaign that exploited their hypocritical embrace of abortion as a solution to succesfully paint them as amoral and selfish. Limbaugh's popular depction of feminists as "FeminNazis" originates in the same campaign. Had the left chosen a different, less violent solution or set of solutions to champion, the entire political landscape might very well be different today. We gave the Republicans their best propoganda weapon.
posted by eustacescrubb at 2:24 PM on October 17, 2005
Accepting violence as a means to an end puts feminism in self-contradiction -- it is a rather patriarchal solution to problems caused by sexism. What can be more phallocentric and symbolic of all that is wrong with partiarchy than the cold instruments of medical technology inserted into a woman's womb for the purposes of death?
And it goes against the logic that underpins the rest of the liberal ideology. As a result, instead of waging the longer and more difficult war of getting the country to quit penalizing single mothers, and to make deadbeat dads pay up, and to provide real options for mothers who can't afford to bear and have children, and to make corporations pay living wages that can support familes, we settled for killing living beings.
What's worse, to denfend it, we have been asked to embrace contradictory, confusing philosophies and bad science in order to justify supporting abortion. Even worse, abortion does nothing to solve the root problems of sexism and the greed of unfettered capitalism. It is, at best, a band-aid, but it involves accepting violence as a solution.
I don't vote for "pro-life" candidates, for multiple reasons (they are, after all, not really "pro-life" in most cases and thier position is even more dangerous and contradictory) but I have always felt uncomfortable when this topic is brought up, mainly because I consider it liberalism's great shame.
The problem of abortion won't be solved by making it legal or illegal because the problem is not abortion itself, but rather how our culture still treats women as second-class citizens, and how the corporate culture in our country it truly anti-family, in that it penalizes workers for having families. It is also a race-releated problem, and a class-related problem, and were liberals to quit kowtowing to Washington insiderism and corporations and actually address and solve those problems, then we'd find people wouldn't need abortions.
(To wit, under Clinton, who could hardly be called a "liberal" president, abortions reached a 24 year low -- because the economy was good; people had jobs, the nation was helping poor people, etc. )
This issue has been used by Republicans to gain the upper hand in the rhetorical battle over how words like moral get defined in the public sphere. Why is it that George Bush, architect of a disasterous and stupid war and abandoner of that war's veterens is percieved as more moral than his oppoenent in the last election, John Kerry? Because the Democrats left themselves wide open to a thirty-year media campaign that exploited their hypocritical embrace of abortion as a solution to succesfully paint them as amoral and selfish. Limbaugh's popular depction of feminists as "FeminNazis" originates in the same campaign. Had the left chosen a different, less violent solution or set of solutions to champion, the entire political landscape might very well be different today. We gave the Republicans their best propoganda weapon.
posted by eustacescrubb at 2:24 PM on October 17, 2005
This is a great discussion, and I appreciate the many great links.
Much smarter people have said much smarter things, but I'd only chime in to add that legal decisions are rarely made in a non-political vacuum. Bush is trying to walk a tightrope between his ego and the religious right, and the latter has finally called bullshit. I don't think it's a Rovean ploy though--it's Bush having his Clinton "legacy" moment, and it's blown up in his face.
Republicans have once again won the rhetoric battle when it comes to invective against "activist" judges. This is code for judges who stray from White House talking points. Bush v. Gore? Schiavo? Euthanasia in Oregon? Pot in California? It's telling that Reagan era "states rights" discourse has become more muddled, if not ejected, precisely because this administration doesn't give a damn about state sovereignty, but it's maddening that they get political mileage out of it, still. On this point, people need to wake up and realize the total disingenuity of this administration.
As for the right to privacy, I'd agree that it's high time for a SCOTUS decision that enumerates this explicitly. Then again, I thought IV already did this. And I'd agree that Roe v. Wade is a "bad" decision in that it really put off some critical issues re: individual privacy vs. states rights vs. Federal law that only add to more noise (most Americans, IMHO, still fail to realize that abortion isn't the central issue in Roe). But you have to be living under a rock to think an even-handed discussion of this is possible today, given how ruthless and tone-deaf Bushco. has been in "uniting, not dividing."
As for the argument that only lawyers can discuss law? I'll grant that I'm not much help in a copyright case, but a working understanding of the Bill of Rights and later amendments isn't that difficult--it's necessary, especially living in these times.
posted by bardic at 2:28 PM on October 17, 2005
Much smarter people have said much smarter things, but I'd only chime in to add that legal decisions are rarely made in a non-political vacuum. Bush is trying to walk a tightrope between his ego and the religious right, and the latter has finally called bullshit. I don't think it's a Rovean ploy though--it's Bush having his Clinton "legacy" moment, and it's blown up in his face.
Republicans have once again won the rhetoric battle when it comes to invective against "activist" judges. This is code for judges who stray from White House talking points. Bush v. Gore? Schiavo? Euthanasia in Oregon? Pot in California? It's telling that Reagan era "states rights" discourse has become more muddled, if not ejected, precisely because this administration doesn't give a damn about state sovereignty, but it's maddening that they get political mileage out of it, still. On this point, people need to wake up and realize the total disingenuity of this administration.
As for the right to privacy, I'd agree that it's high time for a SCOTUS decision that enumerates this explicitly. Then again, I thought IV already did this. And I'd agree that Roe v. Wade is a "bad" decision in that it really put off some critical issues re: individual privacy vs. states rights vs. Federal law that only add to more noise (most Americans, IMHO, still fail to realize that abortion isn't the central issue in Roe). But you have to be living under a rock to think an even-handed discussion of this is possible today, given how ruthless and tone-deaf Bushco. has been in "uniting, not dividing."
As for the argument that only lawyers can discuss law? I'll grant that I'm not much help in a copyright case, but a working understanding of the Bill of Rights and later amendments isn't that difficult--it's necessary, especially living in these times.
posted by bardic at 2:28 PM on October 17, 2005
Same here. I did multiple, multiples of the same post above. It wasn't for emphasis. I was getting errors back and didn't think it went thru the first 4 or 5 times.
posted by Carbolic at 2:44 PM on October 17, 2005
posted by Carbolic at 2:44 PM on October 17, 2005
*Sorry, not sure why the post was multiple*
posted by bardic at 10:30 PM GMT on October 17 [!]
I think it was when the server fell over. It also enabled the multiple postings where carbolic shamefully and childishly called Godbert 'Dickbert'. Way to sully a very informative thread.
posted by dash_slot- at 2:46 PM on October 17, 2005
posted by bardic at 10:30 PM GMT on October 17 [!]
I think it was when the server fell over. It also enabled the multiple postings where carbolic shamefully and childishly called Godbert 'Dickbert'. Way to sully a very informative thread.
posted by dash_slot- at 2:46 PM on October 17, 2005
I'm surprised this story just hit Metafilter. I did a couple of big posts on it last week at the daily Kos.
It's rather unusual. Such info typically migrates far faster.
posted by troutfishing at 2:47 PM on October 17, 2005
It's rather unusual. Such info typically migrates far faster.
posted by troutfishing at 2:47 PM on October 17, 2005
If you'd pay a little closer attention it would greatly reduce the noise factor.
posted by Carbolic at 5:11 PM EST on October 17 [!]
Here's what Dios said:
``We leave a lot of things to the states: capital punishment, euthanasia, criminal laws, marriage laws, family laws, health laws. These are questions of policy. All of these things are "important" and they are all province of the states.'
The Internet is a great resource. I'm not a lawyer, but I can spend a few minutes or so to easily find four examples of primary evidence that the statement above is false. So much for dios arguing from "authority".
Oh, and Carbolic, if you wouldn't say "dickbert" five or six times, the spittle flying from your mouth wouldn't be so fucking obvious. I suppose I could call you an asshole but that would be redundant by now.
posted by Rothko at 2:47 PM on October 17, 2005
posted by Carbolic at 5:11 PM EST on October 17 [!]
Here's what Dios said:
``We leave a lot of things to the states: capital punishment, euthanasia, criminal laws, marriage laws, family laws, health laws. These are questions of policy. All of these things are "important" and they are all province of the states.'
The Internet is a great resource. I'm not a lawyer, but I can spend a few minutes or so to easily find four examples of primary evidence that the statement above is false. So much for dios arguing from "authority".
Oh, and Carbolic, if you wouldn't say "dickbert" five or six times, the spittle flying from your mouth wouldn't be so fucking obvious. I suppose I could call you an asshole but that would be redundant by now.
posted by Rothko at 2:47 PM on October 17, 2005
Wasn't it Griswold v. CT (birth-control case) that originally laid the foundation for a woman's right to do as she pleases with her reproductive system anyway?
and what bardic said, but now there's absolutely no hope of a clear enumeration of anything that would go against the GOP agenda. Roberts and whoever the second one is will ensure that there's no more swing vote.
posted by amberglow at 2:47 PM on October 17, 2005
and what bardic said, but now there's absolutely no hope of a clear enumeration of anything that would go against the GOP agenda. Roberts and whoever the second one is will ensure that there's no more swing vote.
posted by amberglow at 2:47 PM on October 17, 2005
Rothko, you have no idea what you're arguing about. You're just trying to pile on dios once again, for no reason other than that he's dios.
Do us all a favour and stick to topics you actually know something about.
Schmuck.
posted by five fresh fish at 3:07 PM on October 17, 2005
Do us all a favour and stick to topics you actually know something about.
Schmuck.
posted by five fresh fish at 3:07 PM on October 17, 2005
Crikey. Some people weren't paying attention at all to the chapter on Federalism in their American Government classes. It's usually chapter 3 or 4, if you'd like to review it.
posted by spock at 3:10 PM on October 17, 2005
posted by spock at 3:10 PM on October 17, 2005
Rothko: I was going to send you an explanation regarding the "Dickbert" via email but you don't have an address that I can decipher in your profile. I'll just say it was a misunderstanding on my part and apologize. Also, I didn't mean to post it multiple times.
posted by Carbolic at 3:12 PM on October 17, 2005
posted by Carbolic at 3:12 PM on October 17, 2005
Rothko, you have no idea what you're arguing about. You're just trying to pile on dios once again, for no reason other than that he's dios.
posted by five fresh fish at 6:07 PM EST on October 17 [!]
The SCOTUS opinions contradict his assertion. Did you bother to read them? If you didn't, I honestly have to ask if you know what you're arguing about.
posted by Rothko at 3:12 PM on October 17, 2005
posted by five fresh fish at 6:07 PM EST on October 17 [!]
The SCOTUS opinions contradict his assertion. Did you bother to read them? If you didn't, I honestly have to ask if you know what you're arguing about.
posted by Rothko at 3:12 PM on October 17, 2005
The SCOTUS opinion contradicts his assertion because he disagrees with SCOTUS!!!! That is what you are missing Rothko! He disagrees. His point is that he disagrees with that opinion.
posted by Carbolic at 3:16 PM on October 17, 2005
posted by Carbolic at 3:16 PM on October 17, 2005
but I can spend a few minutes or so to easily find four examples of primary evidence that the statement above is false.
posted by Rothko at 4:47 PM CST on October 17
I've explained this to you a number of times. It is clear that you are unwilling to bother to understand what I am talking about. I can explain it to you, as I have, but I can't understand it for you.
At this point, you are offering nothing but noise to this thread by insisting that your links offer some counterpoint that they do not in fact offer.
In other words, you are being a dog with a bone that won't let go. But really, why would we expect anything else from you?
posted by dios at 3:20 PM on October 17, 2005
posted by Rothko at 4:47 PM CST on October 17
I've explained this to you a number of times. It is clear that you are unwilling to bother to understand what I am talking about. I can explain it to you, as I have, but I can't understand it for you.
At this point, you are offering nothing but noise to this thread by insisting that your links offer some counterpoint that they do not in fact offer.
In other words, you are being a dog with a bone that won't let go. But really, why would we expect anything else from you?
posted by dios at 3:20 PM on October 17, 2005
Dios, you've explained nothing. You've asserted that states have rights they, in fact, do not. This is not an opinion, you are stating something as fact when you are wrong, and you based your opinion entirely on this.
In other words, since you cannot admit you are wrong and because you changed your story when I called you on it, you are once again intellectually dishonest. But really, why should we expect anything more from you?
posted by Rothko at 3:32 PM on October 17, 2005
In other words, since you cannot admit you are wrong and because you changed your story when I called you on it, you are once again intellectually dishonest. But really, why should we expect anything more from you?
posted by Rothko at 3:32 PM on October 17, 2005
eustacescrubb, I have some minor differences with your position, but thank you for articulating so well what is an unpopular but important take on the debate (and one that I do about 90% agree with).
posted by jokeefe at 3:33 PM on October 17, 2005
posted by jokeefe at 3:33 PM on October 17, 2005
dash_slot- : I think it was when the server fell over. It also enabled the multiple postings where carbolic shamefully and childishly called Godbert 'Dickbert'. Way to sully a very informative thread.
And it wasn't even me you were quoting! Let's blame it all on the server!
(Not that I mind ... I don't. I actually find it rather amusing.)
posted by Godbert at 3:35 PM on October 17, 2005
And it wasn't even me you were quoting! Let's blame it all on the server!
(Not that I mind ... I don't. I actually find it rather amusing.)
posted by Godbert at 3:35 PM on October 17, 2005
And I quoted dash_slot- instead of Carbolic. Ooops.
And I had a rather long post ready to go when the server died, before I left for home, but then I realized it didn't make any sense. So at least something good came out of it.
posted by Godbert at 3:37 PM on October 17, 2005
And I had a rather long post ready to go when the server died, before I left for home, but then I realized it didn't make any sense. So at least something good came out of it.
posted by Godbert at 3:37 PM on October 17, 2005
Personally, I am perfectly willing to admit that Roe v. Wade isn't a particularly well-written decision. However, I also believe that the right to privacy *is* implicit in the Bill of Rights and further constitutional amendments, very strongly, and not particularly subtly (Amendments 4 paired with 14 leaps to mind.)
So, when someone recommends replacing Roe v. Wade with a better written decision that accomplishes much the same thing, I'll probably be right there with them. Until then, I'd prefer to stick with what we've got, which enforces constitutional principles correctly in a badly worded way.
posted by kyrademon at 3:52 PM on October 17, 2005
So, when someone recommends replacing Roe v. Wade with a better written decision that accomplishes much the same thing, I'll probably be right there with them. Until then, I'd prefer to stick with what we've got, which enforces constitutional principles correctly in a badly worded way.
posted by kyrademon at 3:52 PM on October 17, 2005
I think [Raich v. Gonzales] was wrongly decided as a jurisprudential matter. I would agree with both the dissents of O'Connor and Thomas. The United States was supposed to be a federal structure with little laboratories of democracy. A state should be free to be a pot-smoking, no-seatbelt-wearing, nudist camp, if it is so voted on by the populace. And a state should be free to be the opposite. Like Utah. Little laboratories of democracy.
Exactly.
What's your take on how this will impact Oregon v. Gonzales?
posted by mullingitover at 4:28 PM on October 17, 2005
Exactly.
What's your take on how this will impact Oregon v. Gonzales?
posted by mullingitover at 4:28 PM on October 17, 2005
The Bellman's most recent post saved me from further inchoate fumbling. (I suppose this is why we pay lawyers.) Bellman's categories of numerated v. unenumerated rights make far more sense than Dios's (nicely argued but specious) requirements v. proscriptions. The difference is (to me) obvious yet surprisingly difficult to articulate.
Though I'm not a lawyer, I do know that Roe was based, in part, on Griswold, the first SCOTUS case to cite a "penumbra" of constitutional rights.
So, if Roe is overturned, will Griswold be at risk?
I'd pay cash money to see anyone at any party convention arguing that a central plank of the platform should declare that married couples are not entitled to unfettered access to birth control.
On preview: For fuck's sake, stop picking on dios! I'm certainly no fan of his; in fact, I think he's a supercilious prick who's over-impressed with his own endowments (educational, if not otherwise). But in this thread, he's been unfailingly courteous and responsive.
Those who've been attacking him (i.e., Rothko) seem unable to realize that if an opponent in an argument does not automatically respond to one's counter-examples with exposed-throat submission--that doesn't mean you've won whatever it is you think is at stake.
These same people seem equally unable to comprehend the simple fact that a person one doesn't particularly like may have something of interest to say. Something that might enrich one's own grand cogitations.
posted by vetiver at 4:30 PM on October 17, 2005
Though I'm not a lawyer, I do know that Roe was based, in part, on Griswold, the first SCOTUS case to cite a "penumbra" of constitutional rights.
So, if Roe is overturned, will Griswold be at risk?
I'd pay cash money to see anyone at any party convention arguing that a central plank of the platform should declare that married couples are not entitled to unfettered access to birth control.
On preview: For fuck's sake, stop picking on dios! I'm certainly no fan of his; in fact, I think he's a supercilious prick who's over-impressed with his own endowments (educational, if not otherwise). But in this thread, he's been unfailingly courteous and responsive.
Those who've been attacking him (i.e., Rothko) seem unable to realize that if an opponent in an argument does not automatically respond to one's counter-examples with exposed-throat submission--that doesn't mean you've won whatever it is you think is at stake.
These same people seem equally unable to comprehend the simple fact that a person one doesn't particularly like may have something of interest to say. Something that might enrich one's own grand cogitations.
posted by vetiver at 4:30 PM on October 17, 2005
Rothko:
At least he engages with you. This thread shows again that dios merely ignores challenges that he finds hard to refute from me (I don't think it is just me, but I've noticed it more when my questions are ignored. Maybe they're not technical enough?)
Again: if Roe v. Wade is such a bad precedent, which subsequent cases have relied on it and made for bad decisions, dios?
posted by dash_slot- at 4:31 PM on October 17, 2005
At least he engages with you. This thread shows again that dios merely ignores challenges that he finds hard to refute from me (I don't think it is just me, but I've noticed it more when my questions are ignored. Maybe they're not technical enough?)
Again: if Roe v. Wade is such a bad precedent, which subsequent cases have relied on it and made for bad decisions, dios?
posted by dash_slot- at 4:31 PM on October 17, 2005
I also have to admit that dios, with minor exceptions, has been snark- and troll-free in this thread. Even though I don't like what he's saying, I like how he's saying it. Kudos.
Are there no lefty constitutional lawyers willing to declare in this thread?
posted by dash_slot- at 4:35 PM on October 17, 2005
Are there no lefty constitutional lawyers willing to declare in this thread?
posted by dash_slot- at 4:35 PM on October 17, 2005
that's just as schmucky, fff--quit it.
Right you are. I'm open to suggestions as to how to deliver the clue to him.
Within the framework of requirements versus proscriptions, Dios is presenting an informed argument that addresses a very specific and limited area of legal thought. Rothko steadfastedly refuses to play nicely within that sandbox, choosing to drop cat turds of specious irrelevancies into it.
If you can get him to stop it, we'll all be much obliged.
posted by five fresh fish at 5:00 PM on October 17, 2005
Right you are. I'm open to suggestions as to how to deliver the clue to him.
Within the framework of requirements versus proscriptions, Dios is presenting an informed argument that addresses a very specific and limited area of legal thought. Rothko steadfastedly refuses to play nicely within that sandbox, choosing to drop cat turds of specious irrelevancies into it.
If you can get him to stop it, we'll all be much obliged.
posted by five fresh fish at 5:00 PM on October 17, 2005
(note: this post was pre-crash, but still relevant)
dios: I don't know any off the top of my head, and I'd have to read their argument before saying so. But I think it is widely considered, as a purely legal matter, to be a bad decision.
Hey dios, is Bush v. Gore held in high esteem by the legal cognoscienti?
Your argument is crap. First of all, your entire premise (as far as I can tell) isn't based in any sort of legal context but rather in the laughable argument that Roe represents an affirmative requirement for states to allow abortion. Given all your kvetching about the distinction between requirements and proscriptions, I'm astonished that you'd couch the debate that way. However, I suppose that you didn't figure that anyone would engage you on the topic, so I guess I shouldn't be all that surprised.
Bellman is giving you too much credit. I think that Alex/Rothko is, like you, speaking outside of his depth, but I also think it's convenient that you ignored his post where he explicitly pointed out that Roe is, in fact, a prohibition, not a requirement. Did we miss the part where the court required all the states to pass pro-abortion laws?
Second, I haven't see you reference a single precendent here except for a quote from White which doesn't make a whole lot of sense. Roe falls in a long tradition of protecting reproductive and privacy rights which, contra your assertion, weren't just conjured up out of nowhere. If you want to argue those precedents, bring them up, don't just snark like an idiot. I don't think that Roe is the greatest decision ever, but not because of any of the bad arguments you're bringing up.
the primary problem was a raw naked power grab by the Court that was not based in any interpretive manner...I don't see how you can define abortion to be any constitutionally protected right, and I think the tortured argument by Blackman indicates that.
Careful there, chief. Phrases like "raw naked power grab" might lead one to think that you're really an ideological nutjob with a legal degree, rather than the hoity-toity super-lawyer most MeFites seem to think you are. Don't make me look bad for defending you against AlexReynolds.
Regardless, cf. the Lemiuex post I linked earlier:
The Court relied on a tenuous extension of the holding in Griswald [sic] which was itself a tenuous ruling.
What? Central argument, +3 Moronic: (a) naked assertion, (b) highly arguable besides, (c) you could at least learn how to spell the case you're referencing.
Seriously, TheBellman asks a legitimate question: just what the hell is your argument here?
posted by spiderwire at 5:01 PM on October 17, 2005 [1 favorite]
dios: I don't know any off the top of my head, and I'd have to read their argument before saying so. But I think it is widely considered, as a purely legal matter, to be a bad decision.
Hey dios, is Bush v. Gore held in high esteem by the legal cognoscienti?
Your argument is crap. First of all, your entire premise (as far as I can tell) isn't based in any sort of legal context but rather in the laughable argument that Roe represents an affirmative requirement for states to allow abortion. Given all your kvetching about the distinction between requirements and proscriptions, I'm astonished that you'd couch the debate that way. However, I suppose that you didn't figure that anyone would engage you on the topic, so I guess I shouldn't be all that surprised.
Bellman is giving you too much credit. I think that Alex/Rothko is, like you, speaking outside of his depth, but I also think it's convenient that you ignored his post where he explicitly pointed out that Roe is, in fact, a prohibition, not a requirement. Did we miss the part where the court required all the states to pass pro-abortion laws?
Second, I haven't see you reference a single precendent here except for a quote from White which doesn't make a whole lot of sense. Roe falls in a long tradition of protecting reproductive and privacy rights which, contra your assertion, weren't just conjured up out of nowhere. If you want to argue those precedents, bring them up, don't just snark like an idiot. I don't think that Roe is the greatest decision ever, but not because of any of the bad arguments you're bringing up.
the primary problem was a raw naked power grab by the Court that was not based in any interpretive manner...I don't see how you can define abortion to be any constitutionally protected right, and I think the tortured argument by Blackman indicates that.
Careful there, chief. Phrases like "raw naked power grab" might lead one to think that you're really an ideological nutjob with a legal degree, rather than the hoity-toity super-lawyer most MeFites seem to think you are. Don't make me look bad for defending you against AlexReynolds.
Regardless, cf. the Lemiuex post I linked earlier:
Rights to reproductive autonomy are deeply embedded in the American constitutional tradition, appearing within many decades of constitutional state and federal doctrine. (David Garrow's Liberty & Sexuality provides an excellent account.) The core are three bedrock cases--Meyer, Skinner, and Griswold--that were supported by a cross-ideological spectrum of justices and are well-settled. There is simply no question that procreative autonomy is a fundamental right in the American constitutional tradition; the only question is whether it applies to abortion....Additionally, Roe only explicitly prohibits the regulation of first-trimester abortion -- and as far as I'm aware there's not yet a "debate" about the legal status of a first-trimester fetus. Just because White invokes that hypothetical controversy doesn't mean it's real -- he could also say that Roe prevents the states from having a meaningful debate about whether fetuses are in fact hyperintelligent fantasy beings from 2001. After all, we surely wouldn't want to anger the overlords who planted the monoliths, right? --Not what I'd call a "damning argument," esp. considering that it's not relevant to the question Roe was asking nor the laws it overturned, which by and large weren't couched in fetal rights. Find a new idol.
While there is no explicit right to "privacy" or "procreative autonomy" in so many words, it is clearly implied by the language of the Bill of Rights and the 14th Amendment. Now, of course, one can disagree with the application of structuralist reasoning in a particular case, or subscribe to a different grand theory. But to pretend that this interpretive method was invented by William Douglas in 1965, or is generally discredited, is absolutely ridiculous.
The Court relied on a tenuous extension of the holding in Griswald [sic] which was itself a tenuous ruling.
What? Central argument, +3 Moronic: (a) naked assertion, (b) highly arguable besides, (c) you could at least learn how to spell the case you're referencing.
Seriously, TheBellman asks a legitimate question: just what the hell is your argument here?
posted by spiderwire at 5:01 PM on October 17, 2005 [1 favorite]
I should have previewed beforehand, but five fresh fish -- I tend to agree with you about Rothko, but on the other hand I don't think that dios has exactly risen to the occasion, and you shouldn't be calling for us to bow down to his legal knowledge a priori until he demonstrates his mastery of the subject. Rothko rightly called him out for asserting that Roe is a positive inducement of some sort and he ignored it. If he can't (a) formulate arguments past the level of a 1L and (b) present them in a way that's understandable, I'm not going to cut him any slack.
A J.D. isn't the Ultimate Trump Card in every legal discussion and I've yet to see dios exercise the civility and reasonableness that would lead me to give him the benefit of the doubt and respect his arguments -- something that many of the lawyers I do know, on both sides of the political spectrum, have managed to do with little difficulty.
I will grant to dios that he's been more civil than usual on this thread and commend him for it. But I still think that his argument is bad, even if the underlying claim (Roe isn't a great decision) is true. I'm waiting for him to engage the discussion rather than relying on smoke and mirrors, which is the vast bulk of what I've seen here today. Take some time to read what's been written in this thread, and I think you'll agree that while he's being more reasonable than usual, he's not serving up brilliant arguments by any means.
posted by spiderwire at 5:10 PM on October 17, 2005
A J.D. isn't the Ultimate Trump Card in every legal discussion and I've yet to see dios exercise the civility and reasonableness that would lead me to give him the benefit of the doubt and respect his arguments -- something that many of the lawyers I do know, on both sides of the political spectrum, have managed to do with little difficulty.
I will grant to dios that he's been more civil than usual on this thread and commend him for it. But I still think that his argument is bad, even if the underlying claim (Roe isn't a great decision) is true. I'm waiting for him to engage the discussion rather than relying on smoke and mirrors, which is the vast bulk of what I've seen here today. Take some time to read what's been written in this thread, and I think you'll agree that while he's being more reasonable than usual, he's not serving up brilliant arguments by any means.
posted by spiderwire at 5:10 PM on October 17, 2005
I called Rothko "Dickbert" because I thought he was calling me "Godbert" for siding with Dios. Little did I realize that there was another user with the handle Godbert that he was responding to. My mistake (posted repeatedly because the site was acting like it wasn't going thru) and I apologized above.
I, again, apologize to Rothko for calling him Dickbert and to Godbert for seeming to call him Dickbert.
posted by Carbolic at 5:32 PM on October 17, 2005
I, again, apologize to Rothko for calling him Dickbert and to Godbert for seeming to call him Dickbert.
posted by Carbolic at 5:32 PM on October 17, 2005
Whatever the legal technicalities are, there's some mind-bendingly illogical things about the ethics of how the law, as currently consituted, ends up dealing with fathers:
1 - on, off (for a 9 month window), then on again (forever) legal existence and responsibility of the father
2 - guilty until proven innocent - assumption, in effect, that fathers are typically so bad and such a negative factors that they must be automatically denied involvement, legal existence, and rights until and unless they are specially granted
3 - determination of life-long consequences for (at least) two parties placed solely in the hands of one of them
Meanwhile OT, the situation is really getting just too weird, with the Miers nomination Mr. Bush reminds me of someone deep in debt, in denial about it, and spending ever more crazily as though to prove he dosn't have a problem. It's like he's having to prove he's still in charge by doing something only he thinks is a good idea. Accusations of cronyism started with Brownie's handling of the Katrina disaster, then people started highlighting other examples, so what does he do? Deliberately attempts to elevate a personal associate past several stages of career development to the highest, most publicly visible position in her field.
posted by scheptech at 5:37 PM on October 17, 2005
1 - on, off (for a 9 month window), then on again (forever) legal existence and responsibility of the father
2 - guilty until proven innocent - assumption, in effect, that fathers are typically so bad and such a negative factors that they must be automatically denied involvement, legal existence, and rights until and unless they are specially granted
3 - determination of life-long consequences for (at least) two parties placed solely in the hands of one of them
Meanwhile OT, the situation is really getting just too weird, with the Miers nomination Mr. Bush reminds me of someone deep in debt, in denial about it, and spending ever more crazily as though to prove he dosn't have a problem. It's like he's having to prove he's still in charge by doing something only he thinks is a good idea. Accusations of cronyism started with Brownie's handling of the Katrina disaster, then people started highlighting other examples, so what does he do? Deliberately attempts to elevate a personal associate past several stages of career development to the highest, most publicly visible position in her field.
posted by scheptech at 5:37 PM on October 17, 2005
If people want to engage me on a topic, they ought to do so without being so insulting. I can't answer every single question thrown at me; look how many are asked of me. If you have something that you think I missed, then by all means e-mail and I'll answer you. But with so many people sniping at me, some of it gets lost in the mix and my responses are limited by the time I have to respond to everyone. But bitching at me because I haven't answered your question fast enough for your satisfaction isn't a way to get me to answer your question if you have one.
As to spiderwire's rude comment that was riffing off of Bellman, I think we need to refocus by looking upstream at my original comments. I made my argument against Roe v. Wade. The point that you are focusing on was not my argument against it.
I touched upon and can make an argument about Roe and how it was wrongly decided from a clause-bound interprevist perspective by critiquing its lack of a constitutional basis---the most daming and problematic of the rulings---, its reliance on questionable cases (Griswold, etc.) to extend tenuous rulings even further, the faults of substantive due process, the anti-democratic act of the Court. They are arguments which are not new and are well known to anyone who looked at this argument. They are not conservative arguments. Liberals like John Hart Ely have objections to Roe, as well.
The Constitution enumerates fundamental rights, but because the document cannot partake of the prolixity of a legal code, it does not enumerate all of a person's rights. The right to privacy is not an enumerated right. The Roe Court based its decisions on cases like Griswald and Eisenstadt---cases which themselves which barely hung a legally defensible thread. Roe took these cases even farther out. A right, which was not enumerated, was called "fundamental" even though it could not be tied to any enumerated right. Certainly, if there was as fundamental right as privacy, it would have some link to an enumerated right. Instead, the Court linked it to some notion of liberty (the Palko definition of ordered liberty). That the Court could not express its link to a fundamental or enumerated right is the fault of the opinion. We do not know the scope or basis for the right, so the reasoning that brought forth that opinion can be applied to limitless applications. We have no basis for judging the contours of the right or of permitting democratic imperatives regarding it. It is a right that is at once created out of whole cloth, and also hidden from us so as to prevent us from knowing what to do with it. It was an act of judicial fiat that was obviously a judicial opinion that only concerned itself with the outcome, and not legal reasoning. When a Court looks at outcomes and not legal reasoning, the Court supplants democratic perogatives in a counter-majoritarian mode that oversteps its constitutionally permitted power. The Court is to be constrained by the law. A Court not constrained by the law is an anathema to the purposes of our Constitution.
The opinion is a legally weak one, and most constitutional scholars admit. The support for it is usually based on a support of its outcomes. But we can't be concerned with outcomes, because, as people are seeing now: the other side might get more numbers and you might not like their outcomes. We have to require judges be faithful to their duties under the Madisonian system. If they do not, they abet either the tyranny of the majority or the tyranny of the minority.
I have to go home now, and I won't be posting anymore in this thread. So, please don't be insulting if you address something to me and do not get a response right away. I have an email in my profile.
posted by dios at 5:38 PM on October 17, 2005
As to spiderwire's rude comment that was riffing off of Bellman, I think we need to refocus by looking upstream at my original comments. I made my argument against Roe v. Wade. The point that you are focusing on was not my argument against it.
I touched upon and can make an argument about Roe and how it was wrongly decided from a clause-bound interprevist perspective by critiquing its lack of a constitutional basis---the most daming and problematic of the rulings---, its reliance on questionable cases (Griswold, etc.) to extend tenuous rulings even further, the faults of substantive due process, the anti-democratic act of the Court. They are arguments which are not new and are well known to anyone who looked at this argument. They are not conservative arguments. Liberals like John Hart Ely have objections to Roe, as well.
The Constitution enumerates fundamental rights, but because the document cannot partake of the prolixity of a legal code, it does not enumerate all of a person's rights. The right to privacy is not an enumerated right. The Roe Court based its decisions on cases like Griswald and Eisenstadt---cases which themselves which barely hung a legally defensible thread. Roe took these cases even farther out. A right, which was not enumerated, was called "fundamental" even though it could not be tied to any enumerated right. Certainly, if there was as fundamental right as privacy, it would have some link to an enumerated right. Instead, the Court linked it to some notion of liberty (the Palko definition of ordered liberty). That the Court could not express its link to a fundamental or enumerated right is the fault of the opinion. We do not know the scope or basis for the right, so the reasoning that brought forth that opinion can be applied to limitless applications. We have no basis for judging the contours of the right or of permitting democratic imperatives regarding it. It is a right that is at once created out of whole cloth, and also hidden from us so as to prevent us from knowing what to do with it. It was an act of judicial fiat that was obviously a judicial opinion that only concerned itself with the outcome, and not legal reasoning. When a Court looks at outcomes and not legal reasoning, the Court supplants democratic perogatives in a counter-majoritarian mode that oversteps its constitutionally permitted power. The Court is to be constrained by the law. A Court not constrained by the law is an anathema to the purposes of our Constitution.
The opinion is a legally weak one, and most constitutional scholars admit. The support for it is usually based on a support of its outcomes. But we can't be concerned with outcomes, because, as people are seeing now: the other side might get more numbers and you might not like their outcomes. We have to require judges be faithful to their duties under the Madisonian system. If they do not, they abet either the tyranny of the majority or the tyranny of the minority.
I have to go home now, and I won't be posting anymore in this thread. So, please don't be insulting if you address something to me and do not get a response right away. I have an email in my profile.
posted by dios at 5:38 PM on October 17, 2005
As to spiderwire's rude comment that was riffing off of Bellman, I think we need to refocus by looking upstream at my original comments. I made my argument against Roe v. Wade. The point that you are focusing on was not my argument against it.
Your 'argument' is a quote from White, which I specifically pointed to and addressed in my post.
And you still don't know how to spell Griswold.
posted by spiderwire at 5:42 PM on October 17, 2005
Your 'argument' is a quote from White, which I specifically pointed to and addressed in my post.
And you still don't know how to spell Griswold.
posted by spiderwire at 5:42 PM on October 17, 2005
That the Court could not express its link to a fundamental or enumerated right is the fault of the opinion.
And women voting? integrated public schools? public schools at all? ... the list is endless. There are rights that are not enumerated in the Constitution. There are fundamental rights that are not mentioned in the Constitution except in the most vague ways.
posted by amberglow at 5:48 PM on October 17, 2005
And women voting? integrated public schools? public schools at all? ... the list is endless. There are rights that are not enumerated in the Constitution. There are fundamental rights that are not mentioned in the Constitution except in the most vague ways.
posted by amberglow at 5:48 PM on October 17, 2005
...but on the other hand I don't think that dios has exactly risen to the occasion, and you shouldn't be calling for us to bow down to his legal knowledge a priori until he demonstrates his mastery of the subject.
Oh, I wouldn't want anyone to bow down. But it's obvious to me that my level of knowledge about the subject is about equal to Rothko's. Which is to say just enough to know that it's better to sit on the sidelines and allow better people -- you, for instance -- to address his argument. All I and Rothko can do is get misled, muddy the waters, and bark about the wrong things.
I eagerly await dios's response to your post. I hope he doesn't fall for your unnecessary baiting, and addresses the crux of it: that RvW represents the most recent of a series of just rulings on "reproductive autonomy."
recast that as 'sexual autonomy', mix in the rulings that allow unmarried sexual coupling, and one starts to wonder why there has not been a federal case wrt all varieties of consensual adult sex, including homosexual sex.
posted by five fresh fish at 5:59 PM on October 17, 2005
Oh, I wouldn't want anyone to bow down. But it's obvious to me that my level of knowledge about the subject is about equal to Rothko's. Which is to say just enough to know that it's better to sit on the sidelines and allow better people -- you, for instance -- to address his argument. All I and Rothko can do is get misled, muddy the waters, and bark about the wrong things.
I eagerly await dios's response to your post. I hope he doesn't fall for your unnecessary baiting, and addresses the crux of it: that RvW represents the most recent of a series of just rulings on "reproductive autonomy."
recast that as 'sexual autonomy', mix in the rulings that allow unmarried sexual coupling, and one starts to wonder why there has not been a federal case wrt all varieties of consensual adult sex, including homosexual sex.
posted by five fresh fish at 5:59 PM on October 17, 2005
On the off chance that you do come back, DIOS, please respond to this simple question:
Do you feel the Constitution needs to be rewritten for the twenty-first century, such that the enumerated rights include the right to privacy and/or the right to sexual autonomy?
posted by five fresh fish at 6:05 PM on October 17, 2005
Do you feel the Constitution needs to be rewritten for the twenty-first century, such that the enumerated rights include the right to privacy and/or the right to sexual autonomy?
posted by five fresh fish at 6:05 PM on October 17, 2005
This kind of shit is why the Supreme Court matters so much (Clarence Thomas, an imprisoned woman, and a pregnancy)
posted by amberglow at 6:10 PM on October 17, 2005
posted by amberglow at 6:10 PM on October 17, 2005
fff -- I appreciate the compliment and the criticism that I was baiting, which is true, but in dios' case I hardly see the incentive to engage in unilateral disarmament.
That said, I still disagree -- I find the quality of dios' analysis on this point hardly above the level of a layperson, and MeFites are generally intelligent people. Rothko's objections were on the whole scattershot, but I don't think that justifies an across-the-board invocation of dios degree as a reason why we couldn't argue this point -- rather, it's just a critique of AlexReynolds' argument style. I think that dios would agree.
However, I should point out that his "wah wah, everybody's sniping at me" commentary is a pretty shoddy defense. dios, if you didn't act like such a condescending douchebag all the time, you wouldn't be subject to all this horrrrible criticism which clearly prevents you from exposing us to your true brilliance -- sounds to me like an argument for not being an ass. It's not an excuse for ignoring those who snipe at you. As far as I'm concerned, this Cry Wolf argument is completely disingenuous.
That said, I have to leave as well, but I'd point you all to my original post and the links therein, the first of which addresses dios' "enumerated right" objection on-point. It's also a much better and more detailed explanation of the argument I was making. I agree that dios's response wasn't a very compelling refutation of what I was trying to say, but I'm of course biased. Regardless, I'll respond to it when I get back.
Interestingly, that same author had a post just recently that also addresses dios' argument that the Court's reasoning is the linchpin of its public legitimacy. It also contains a mention of the overall legitimacy of Roe which I'll bring up when I get the chance.
I'll return to this thread ASAP.
posted by spiderwire at 6:19 PM on October 17, 2005
That said, I still disagree -- I find the quality of dios' analysis on this point hardly above the level of a layperson, and MeFites are generally intelligent people. Rothko's objections were on the whole scattershot, but I don't think that justifies an across-the-board invocation of dios degree as a reason why we couldn't argue this point -- rather, it's just a critique of AlexReynolds' argument style. I think that dios would agree.
However, I should point out that his "wah wah, everybody's sniping at me" commentary is a pretty shoddy defense. dios, if you didn't act like such a condescending douchebag all the time, you wouldn't be subject to all this horrrrible criticism which clearly prevents you from exposing us to your true brilliance -- sounds to me like an argument for not being an ass. It's not an excuse for ignoring those who snipe at you. As far as I'm concerned, this Cry Wolf argument is completely disingenuous.
That said, I have to leave as well, but I'd point you all to my original post and the links therein, the first of which addresses dios' "enumerated right" objection on-point. It's also a much better and more detailed explanation of the argument I was making. I agree that dios's response wasn't a very compelling refutation of what I was trying to say, but I'm of course biased. Regardless, I'll respond to it when I get back.
Interestingly, that same author had a post just recently that also addresses dios' argument that the Court's reasoning is the linchpin of its public legitimacy. It also contains a mention of the overall legitimacy of Roe which I'll bring up when I get the chance.
I'll return to this thread ASAP.
posted by spiderwire at 6:19 PM on October 17, 2005
fff: Do you feel the Constitution needs to be rewritten for the twenty-first century, such that the enumerated rights include the right to privacy and/or the right to sexual autonomy?
If he does respond, I'm sure that dios will point upthread to where he said that he would support a Constitutional amendment clarifying the right to privacy. I'd be curious to know what those enumerated rights would be (in his opinion), and how that amendment would be worded but in all fairness I'm not sure that's an answerable question.
OK, out for real.
posted by spiderwire at 6:30 PM on October 17, 2005
If he does respond, I'm sure that dios will point upthread to where he said that he would support a Constitutional amendment clarifying the right to privacy. I'd be curious to know what those enumerated rights would be (in his opinion), and how that amendment would be worded but in all fairness I'm not sure that's an answerable question.
OK, out for real.
posted by spiderwire at 6:30 PM on October 17, 2005
Did you know that every time you put someone's username in bold, God strangles a puppy?
posted by Cyrano at 6:37 PM on October 17, 2005
posted by Cyrano at 6:37 PM on October 17, 2005
Well, I just got home and have been able to digest most of the thread and yet dios, who was quite eloquent, has now retired from the thread. Too bad. Normally I would be a big supporter of the "lay off dios, you are just attacking him because he's dios" arguments. However, here dios, while being non-confrontational and eloquent, has been disingenuous. The main thrust of his argument centers around whether the constitution puts forward negative or positive rights and responsibilities. A simple reframing of the nature of Roe turns his argument on its head, and dios is smart enough to know it. Bellman refuted this main point nicely. So you are not a lawyer Bellman? Consider law school, you bested a good lawyer today. Dios's argument deflates like a balloon under your piercing analysis.
The real trouble with Roe is not negative versus positive liberties, as merely rephrasing the liberty converts one to another, that is merely semantics. No, the real issue is where did the right to privacy come from? As a strong libertarian I love a right to privacy, despite my lack of a uterus. Nevertheless, the logic for finding this is less than perfect. Add to that the attack on state's rights that this represents and you can see the conservative quandary. Dios is correct, to a true conservative this decision runs deeper than abortion. Nevertheless, the true warriors against Roe are almost universally driven by religion, not political conservatism.
As for state's rights, remember that the driving force for strong state's rights at the drafting of the constitution was to protect the institution of slavery. Because of this, the concept of state's rights is forever tainted. Throughout history the concept has been used to protect negative acts such as slavery, discrimination against minorities and the destruction of the environment in protection of local industry. It remains an important tenant of our government but the abuses to which it has been put diminish its luster and importance.
posted by caddis at 6:59 PM on October 17, 2005
The real trouble with Roe is not negative versus positive liberties, as merely rephrasing the liberty converts one to another, that is merely semantics. No, the real issue is where did the right to privacy come from? As a strong libertarian I love a right to privacy, despite my lack of a uterus. Nevertheless, the logic for finding this is less than perfect. Add to that the attack on state's rights that this represents and you can see the conservative quandary. Dios is correct, to a true conservative this decision runs deeper than abortion. Nevertheless, the true warriors against Roe are almost universally driven by religion, not political conservatism.
As for state's rights, remember that the driving force for strong state's rights at the drafting of the constitution was to protect the institution of slavery. Because of this, the concept of state's rights is forever tainted. Throughout history the concept has been used to protect negative acts such as slavery, discrimination against minorities and the destruction of the environment in protection of local industry. It remains an important tenant of our government but the abuses to which it has been put diminish its luster and importance.
posted by caddis at 6:59 PM on October 17, 2005
Oh, I wouldn't want anyone to bow down. But it's obvious to me that my level of knowledge about the subject is about equal to Rothko's. Which is to say just enough to know that it's better to sit on the sidelines and allow better people -- you, for instance -- to address his argument. All I and Rothko can do is get misled, muddy the waters, and bark about the wrong things.
Well said, FFF... Plus, the point of a rhetorical argument is to convince a skeptical audience of your position. Letting a sparring partner who's at least superficially playing by the rules of civil discourse (as dios was on this occasion) obviously get your goat just makes it easier for others to cast you as an irrational idealogue. (Besides--it makes 'em feel big, so you shouldn't give 'em the satisfaction. But you knew that already.)
Now Dios: How do you respond to FFF's question?
I have a few more of my own, when/if you get around to it:
1) Backtracking a little, Rothko did make a valid point about the de facto authority of the federal government. Regardless of what the "correct" constitutional interpretation is, many, many areas of law that according to a strict constructionist view should rightly be left to the states to legislate as they see fit are currently legislated at the federal level. So why focus all the attention on the (from your perspective, dubious) precedent set in Roe v. Wade rather than the myriad other cases that have extended federal power beyond its original scope?
2) Suppose the Roe v. Wade decision had provided a clear, defensible legal standard for when life begins and ends, grounded in the best possible scientific evidence. Would you respect the precedent then, or would you still harbor doubts?
3) Suppose further that congress introduced an amendment to the US constitution that explicitly enumerated personal privacy as a fundamental right. Would you argue that such an amendment should or shouldn't be adopted, and on what grounds?
posted by all-seeing eye dog at 7:02 PM on October 17, 2005
Well said, FFF... Plus, the point of a rhetorical argument is to convince a skeptical audience of your position. Letting a sparring partner who's at least superficially playing by the rules of civil discourse (as dios was on this occasion) obviously get your goat just makes it easier for others to cast you as an irrational idealogue. (Besides--it makes 'em feel big, so you shouldn't give 'em the satisfaction. But you knew that already.)
Now Dios: How do you respond to FFF's question?
I have a few more of my own, when/if you get around to it:
1) Backtracking a little, Rothko did make a valid point about the de facto authority of the federal government. Regardless of what the "correct" constitutional interpretation is, many, many areas of law that according to a strict constructionist view should rightly be left to the states to legislate as they see fit are currently legislated at the federal level. So why focus all the attention on the (from your perspective, dubious) precedent set in Roe v. Wade rather than the myriad other cases that have extended federal power beyond its original scope?
2) Suppose the Roe v. Wade decision had provided a clear, defensible legal standard for when life begins and ends, grounded in the best possible scientific evidence. Would you respect the precedent then, or would you still harbor doubts?
3) Suppose further that congress introduced an amendment to the US constitution that explicitly enumerated personal privacy as a fundamental right. Would you argue that such an amendment should or shouldn't be adopted, and on what grounds?
posted by all-seeing eye dog at 7:02 PM on October 17, 2005
spiderwire:
I appreciate the compliment and the criticism that I was baiting, which is true, but in dios' case I hardly see the incentive to engage in unilateral disarmament.
Seems like dios has already done the unilateral thing, which is the hard part.
Read the thread. He's expressed opinions contrary to yours (and mine); he's marshalled evidence that you (and I) don't find particularly compelling.
I don't see anything remotely resembling baiting from dios.
Really, you're the master baiter here.
posted by vetiver at 7:08 PM on October 17, 2005
I appreciate the compliment and the criticism that I was baiting, which is true, but in dios' case I hardly see the incentive to engage in unilateral disarmament.
Seems like dios has already done the unilateral thing, which is the hard part.
Read the thread. He's expressed opinions contrary to yours (and mine); he's marshalled evidence that you (and I) don't find particularly compelling.
I don't see anything remotely resembling baiting from dios.
Really, you're the master baiter here.
posted by vetiver at 7:08 PM on October 17, 2005
on second glance, it looks like a couple of these were already covered... if so, just note that fact and disregard, please...
posted by all-seeing eye dog at 7:09 PM on October 17, 2005
posted by all-seeing eye dog at 7:09 PM on October 17, 2005
Caddis: Bellman poked holes in an argument Dios never made. The problem is Dios can't seem to make what he is arguing clear to some (or maybe I'm seeing clarity in Dios' arguments where there is none).
For example, Dios' argument would not allow the states to do away with Miranda as Bellman seems to say it would. Miranda is a limit on something the states have chosen to do. The feds didn't say "you must question suspects and this is how", they said "you have chosen to question suspects and these are the limitations on how you go about it."
posted by Carbolic at 7:12 PM on October 17, 2005
For example, Dios' argument would not allow the states to do away with Miranda as Bellman seems to say it would. Miranda is a limit on something the states have chosen to do. The feds didn't say "you must question suspects and this is how", they said "you have chosen to question suspects and these are the limitations on how you go about it."
posted by Carbolic at 7:12 PM on October 17, 2005
jokeefe: thank you. I was somewhat nervous about posting it.
posted by eustacescrubb at 7:15 PM on October 17, 2005
posted by eustacescrubb at 7:15 PM on October 17, 2005
dios: am i understanding your point correctly? namely:
the constituion prohibits certain things (racial discrimination) but in terms of what's ALLOWED, it doesn't force states to allow anything. It merely prohibits certain behavior. That behavior is specifically discussed in the constitution.
so where Brown vs The Board of Education differs from Roe vs. Wade is that b v tbe is an enforcement of a specific proscription, where rvw is trying to force something to be allowed.
the reason you make this distinction (rather than phrasing it, prevention of the invasion of privacy, say.) is because the right to privacy isn't actually in the constitution? that's the part I think I'm misunderstanding. Is that true? Or is it that you don't believe abortion can be a matter of privacy?
a side note: while i agree with the idea that dios' behavior in this thread has been exemplary and that some people are leaping too quickly to the pile-on, am I the only one getting sick of five_fresh_fish?
posted by shmegegge at 7:20 PM on October 17, 2005
the constituion prohibits certain things (racial discrimination) but in terms of what's ALLOWED, it doesn't force states to allow anything. It merely prohibits certain behavior. That behavior is specifically discussed in the constitution.
so where Brown vs The Board of Education differs from Roe vs. Wade is that b v tbe is an enforcement of a specific proscription, where rvw is trying to force something to be allowed.
the reason you make this distinction (rather than phrasing it, prevention of the invasion of privacy, say.) is because the right to privacy isn't actually in the constitution? that's the part I think I'm misunderstanding. Is that true? Or is it that you don't believe abortion can be a matter of privacy?
a side note: while i agree with the idea that dios' behavior in this thread has been exemplary and that some people are leaping too quickly to the pile-on, am I the only one getting sick of five_fresh_fish?
posted by shmegegge at 7:20 PM on October 17, 2005
caddis: not to defend slavery, but there was more to the Anti-Federalists than just this issue. Yes, Jefferson wanted to keep his slaves. But his larger philosophical outlook was to avoid creating another nasty, urban, degenerate, overly centralized new Europe (I'm generalizing a bit here, but I hope you see what I'm getting at). As a liberal with libertarian leanings, I actually have a lot of sympathy for the states' rights argument, understood broadly. The sovereignty of states should act as a check on Federal power. What drives me batshit insane is how the Right tends to get a lot of mileage out of defending states' rights (e.g., gun ownership) but as of late, doesn't seem to give a damn about them in practice.
Five fresh fish: Agreed that a lawyer will more likely be an expert on these things, but as I mentioned, this is 1) a discussion site and 2) pertains to Constitutional and civil rights, broadly. I'd hate to think too many people would throw up their arms when confronted with issues like Roe, or Kelo for that matter, because while it does take some work for a layperson like myself, it certainly isn't impossible to have a cursory understanding.
FWIW, I've taught American history to 11th graders, and while I don't think many of them could keep up with this thread, I'd like to think they have a basic understanding of how personal liberties are often caught up in larger debates over Federal and state power. And if they do become lawyers who think the president is "cool," then hell, I've educated a future SCJ.
Spiderwire: Thanks again for the links.
posted by bardic at 7:40 PM on October 17, 2005
Five fresh fish: Agreed that a lawyer will more likely be an expert on these things, but as I mentioned, this is 1) a discussion site and 2) pertains to Constitutional and civil rights, broadly. I'd hate to think too many people would throw up their arms when confronted with issues like Roe, or Kelo for that matter, because while it does take some work for a layperson like myself, it certainly isn't impossible to have a cursory understanding.
FWIW, I've taught American history to 11th graders, and while I don't think many of them could keep up with this thread, I'd like to think they have a basic understanding of how personal liberties are often caught up in larger debates over Federal and state power. And if they do become lawyers who think the president is "cool," then hell, I've educated a future SCJ.
Spiderwire: Thanks again for the links.
posted by bardic at 7:40 PM on October 17, 2005
Well, I still think the states' rights issue is overstated and clouded by florid language. On the positive end dios affirms states' rights as "little laboratories of democracy" and bardic pans its opposite as "a nasty, urban, degenerate overly centralized new Europe."
At least in part phenomenon such as states' rights were a bone thrown to states like Virginia and Georgia to make sure that all the colonies would play along at becoming a united new nation. Southern states wanted slaves but also didn't want to be overruled in any issue by more populous, industrialized states to the north (hence the structure of the Senate, as well). The danger that the new nation would fall apart, even after the war, was quite real. The Articles of Confederation period before the Constitution was like states' rights on steroids and very nearly capsized the fledgling nation.
I think dios' most confusing assertion is that it would be Constitutionally correct for the federal government to intervene if a state decided only white people could marry... While we could argue to what degree this kind of protection (or right, presumably on the part of non-white people to marry) is more clear than the right to privacy, it is certainly no more explicitly enumerated. This is why it took until 1954 to begin to integrate public facilities...
posted by Slothrop at 8:06 PM on October 17, 2005
At least in part phenomenon such as states' rights were a bone thrown to states like Virginia and Georgia to make sure that all the colonies would play along at becoming a united new nation. Southern states wanted slaves but also didn't want to be overruled in any issue by more populous, industrialized states to the north (hence the structure of the Senate, as well). The danger that the new nation would fall apart, even after the war, was quite real. The Articles of Confederation period before the Constitution was like states' rights on steroids and very nearly capsized the fledgling nation.
I think dios' most confusing assertion is that it would be Constitutionally correct for the federal government to intervene if a state decided only white people could marry... While we could argue to what degree this kind of protection (or right, presumably on the part of non-white people to marry) is more clear than the right to privacy, it is certainly no more explicitly enumerated. This is why it took until 1954 to begin to integrate public facilities...
posted by Slothrop at 8:06 PM on October 17, 2005
I was trying to channel Jefferson and his fellow Anti-Federalists (contra-Hamilton) in that comment. Jefferson, and much of the southern land-owning, slave-owning framers were interested primarily in keeping what they owned free from taxes and interference. The fear was that a Hamiltonian, cosmopolitan commerce-based society (think also Franklin) would lead to the very thing they had wanted to get away from in Europe (and given the events of the French Revolution, you can't blame them, at least in terms of their ideals).
Read my comment again if you'd like: I think states' rights, while inextricable and tragically tied to slavery, still have an important place in contemporary Constitutional discourse. Perverted, yes, but still worth discussing, if only because it's a position from which the flailing Democratic party could actually gain some ground.
(Of course, wealthy merchants and lawyers in the north wanted to keep their goodies as well. They just didn't have to rely on tobacco and rice, and hence slave labor, for their largesse.)
posted by bardic at 8:18 PM on October 17, 2005
Read my comment again if you'd like: I think states' rights, while inextricable and tragically tied to slavery, still have an important place in contemporary Constitutional discourse. Perverted, yes, but still worth discussing, if only because it's a position from which the flailing Democratic party could actually gain some ground.
(Of course, wealthy merchants and lawyers in the north wanted to keep their goodies as well. They just didn't have to rely on tobacco and rice, and hence slave labor, for their largesse.)
posted by bardic at 8:18 PM on October 17, 2005
I appreciate your apology carbolic. Don't see enough folk own up to their errors here.
dios - email on it's way.
posted by dash_slot- at 10:02 AM on October 18, 2005
dios - email on it's way.
posted by dash_slot- at 10:02 AM on October 18, 2005
OK, biting dios' bait just, you know, for the fuck of it
It is nothing but judicial fiat.
unlike Bush vs Gore, of course. let's overturn that, too, OK?
The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
it's also interesting how the possibility exists that Rocco Siffredi could be elected Pope when Professor Ratzinger dies. as you know, dios, there is no written rule that binds the cardinals to vote for a cardinal, you only need to be in Christian tio be elected Pope. the possibility, you know, exists.
thank God it's highly unlikely you really believe that -- you sound marginally too intelligent. as others have said, maybe Mississippi will soon pass a law in favor of gay marriage. and Texans will overwhemingly vote for a moratorium on all executions. ah, possibility.
why so shy? if Roe goes down, it's coathanger time, just like before Roe. of course, dios, since you're apparently employed, if you actually manage to have sex and knock up your girlfriend, you'll be able to pay for, you know, dios, the proverbial trip to Mexico.
for other people's girlfriends, instead, it'll be a trip to the closest backroom clinic.
come to think of it, maybe somebody will start to firebomb those, too.
posted by matteo at 1:46 PM on October 18, 2005
It is nothing but judicial fiat.
unlike Bush vs Gore, of course. let's overturn that, too, OK?
The possibility exists that Roe could be overturned and abortion would remain legal in every state in the Union.
it's also interesting how the possibility exists that Rocco Siffredi could be elected Pope when Professor Ratzinger dies. as you know, dios, there is no written rule that binds the cardinals to vote for a cardinal, you only need to be in Christian tio be elected Pope. the possibility, you know, exists.
thank God it's highly unlikely you really believe that -- you sound marginally too intelligent. as others have said, maybe Mississippi will soon pass a law in favor of gay marriage. and Texans will overwhemingly vote for a moratorium on all executions. ah, possibility.
why so shy? if Roe goes down, it's coathanger time, just like before Roe. of course, dios, since you're apparently employed, if you actually manage to have sex and knock up your girlfriend, you'll be able to pay for, you know, dios, the proverbial trip to Mexico.
for other people's girlfriends, instead, it'll be a trip to the closest backroom clinic.
come to think of it, maybe somebody will start to firebomb those, too.
posted by matteo at 1:46 PM on October 18, 2005
that Roe could be overturned 3
then I can finally put to rest my biggest discussion blunder - while having cocktails with Prosecutor Wade, not realizing He was him, Roe vs. Wade...to my grave I'm stuck knowing I could have had the better discussion to the biggest issue of my time,,,other than asking God, why Christians are labeled pro-lifers.
PS, if Wade thought nothing of killing brain cells with the spirits, not much of a pro-lifer
(iirc, he only supported the states stance not his).
*matteo, I will try calling you this weekend.
posted by thomcatspike at 3:54 PM on October 18, 2005
then I can finally put to rest my biggest discussion blunder - while having cocktails with Prosecutor Wade, not realizing He was him, Roe vs. Wade...to my grave I'm stuck knowing I could have had the better discussion to the biggest issue of my time,,,other than asking God, why Christians are labeled pro-lifers.
PS, if Wade thought nothing of killing brain cells with the spirits, not much of a pro-lifer
(iirc, he only supported the states stance not his).
*matteo, I will try calling you this weekend.
posted by thomcatspike at 3:54 PM on October 18, 2005
I was going to wait for dios to return, but seeing as this is about to fall off of the front page, I'll just say my piece. First, the minutiae:
Cyrano: Did you know that every time you put someone's username in bold, God strangles a puppy?
Uh huh. How about this: you convince Matt to give us threaded comments, and I'll stop trying to organize the discussion as best I can. Deal? Until then, please go away until you have something to contribute.
vetiver: Really, you're the master baiter here.
Har, har. Third grade called and wants its insults back.
To be clear: I was wrong to be "rude," as dios puts it, but my general reflex when arguing with him is to go on the offensive. Given the general tenor of his conduct here, I can't see why that would be surprising.
Perhaps you missed the part where I was apologizing and accepting the criticism. Despite the quality of his argument, I wish that dios would at least carry his civility here over to other threads. I overreacted.
Anyway. Still waiting for dios' response, but I'm doubtful that it's forthcoming. So far, I've seen three arguments from him in this thread:
1. Roe is an affirmative compulsion to states to require abortion and that's bad.
2. Roe closes the door on the fetal rights debate (pace the White quote).
3. The common "unenumerated rights" argument.
The first two arguments are complete bunkum, which -- I'm guessing -- is why dios is trying to distance himself from them now. The unenumerated rights argument is not without merit, but ultimately rests on the presumption that Griswold's "penumbra" logic is flawed, which I'd dispute, and which dios hasn't even argued apart from bladly asserting that Griswold is somehow flawed. (The first Lemieux link I provided sums up my position here; at the very least, it's a disputable point.)
Regardless, even if dios is right, there are a number of ways that Roe could be upheld today in function if not in form -- e.g., overturning Slaughterhouse and relying on "protections and immunities," or using the Ginsburgian women's rights slant, but the upshot of it is that while many might admit that Roe is not a great opinion, the reason it's not going to be overturned is that it would just get upheld again, functionally.
As for the argument that Roe somehow undercuts the credit of the judiciary, that's also ridiculous. Firstly, because most of the country approves of Roe, and secondly because if anything was going to undercut that confidence, I'd posit that Bush v. Gore would have more than done the trick. That's true both w/r/t the quality of the decision and the issue that's being addressed (abortion is important to many but, Bush v. Gore calls into question the fundamental functions of the Republic).
Anyway. Like I said -- not expecting a response to this...
posted by spiderwire at 8:36 PM on October 18, 2005
Cyrano: Did you know that every time you put someone's username in bold, God strangles a puppy?
Uh huh. How about this: you convince Matt to give us threaded comments, and I'll stop trying to organize the discussion as best I can. Deal? Until then, please go away until you have something to contribute.
vetiver: Really, you're the master baiter here.
Har, har. Third grade called and wants its insults back.
To be clear: I was wrong to be "rude," as dios puts it, but my general reflex when arguing with him is to go on the offensive. Given the general tenor of his conduct here, I can't see why that would be surprising.
Perhaps you missed the part where I was apologizing and accepting the criticism. Despite the quality of his argument, I wish that dios would at least carry his civility here over to other threads. I overreacted.
Anyway. Still waiting for dios' response, but I'm doubtful that it's forthcoming. So far, I've seen three arguments from him in this thread:
1. Roe is an affirmative compulsion to states to require abortion and that's bad.
2. Roe closes the door on the fetal rights debate (pace the White quote).
3. The common "unenumerated rights" argument.
The first two arguments are complete bunkum, which -- I'm guessing -- is why dios is trying to distance himself from them now. The unenumerated rights argument is not without merit, but ultimately rests on the presumption that Griswold's "penumbra" logic is flawed, which I'd dispute, and which dios hasn't even argued apart from bladly asserting that Griswold is somehow flawed. (The first Lemieux link I provided sums up my position here; at the very least, it's a disputable point.)
Regardless, even if dios is right, there are a number of ways that Roe could be upheld today in function if not in form -- e.g., overturning Slaughterhouse and relying on "protections and immunities," or using the Ginsburgian women's rights slant, but the upshot of it is that while many might admit that Roe is not a great opinion, the reason it's not going to be overturned is that it would just get upheld again, functionally.
As for the argument that Roe somehow undercuts the credit of the judiciary, that's also ridiculous. Firstly, because most of the country approves of Roe, and secondly because if anything was going to undercut that confidence, I'd posit that Bush v. Gore would have more than done the trick. That's true both w/r/t the quality of the decision and the issue that's being addressed (abortion is important to many but, Bush v. Gore calls into question the fundamental functions of the Republic).
Anyway. Like I said -- not expecting a response to this...
posted by spiderwire at 8:36 PM on October 18, 2005
... I wonder, what would Republicans have said if Clinton had had told the nation that Ruth Bader Ginsburg was good for the Supreme Court because she was a good Jew?
posted by amberglow at 6:39 AM on October 19, 2005
posted by amberglow at 6:39 AM on October 19, 2005
they would have sent her a dvd widescreen collector's edition of Mel Gibson's Passion of the Christ?
posted by matteo at 8:48 AM on October 19, 2005
posted by matteo at 8:48 AM on October 19, 2005
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This thread has been archived and is closed to new comments
/pre-empting any nastiness
posted by Faint of Butt at 8:13 AM on October 17, 2005