Limits on the judiciary and the "N" option play

[Mr.Moto]

Sure it does, and it has for some time.

I may leave it to the lawyers among us to flesh this out a bit, at least until I can research the matter more fully. I’m at a disadvantage here, being at best a reasonably well informed layman.

But as such, I can see that the law has been used to pursue moral ends, and has been used in this way for centuries. And, apart from anarchists, the only argument this engenders is which moral ends get put on the agenda.

I’ll research this more fully, and I promise I’ll get back to you with some of the philosophical underpinnings. My Locke and Hume are at home. But when the government tells me that I have to leave a bar at 2 AM, that the strippers in Virginia have to wear bikinis, or that I have to settle for a low-cap magazine for my handgun, it’s pretty clear that some moral lines are being drawn.

[Neurotik]

@Bricker

Sure. Roe v. Wade and Casey v. Planned Parenthood stand for the proposition that there is a federal constitutional right to an abortion. This conclusion was reached by the court despite an absence of any mention in the text of the Constitution of abortion.

Fine.

So since the Constitution reads that Congress shall make no law abridging my freedom of speech, and offers no qualifiers, I should have the right to yell “Fire” in a crowded theater or make threats against the life of the president, correct? Not only that, but Congress has no power to make any regulations upon the free exercise of my religion, either. So, if my religion requires polygamy or the use of hallucinogenic drugs, it shouldn’t be an issue, correct?

[askeptic]

I think it is important to remember that any rights we my have are not GRANTED by the constitution. The founders felt that we have certain inalienable rights. They never specified what these rights were but then they created a constitution that restricts the governments ability to interfere with whatever rights we the people have. The constitution niether grants nor limits the rights of the people but rather grants power to and restricts the power of the government.

This being the case it is important that when discussing the rights of the people the analysis should focus not on whether the right exhists but whether does the government have the power to limit or control or restrict.

[Gadarene]

Coming in late on this, but…

Bricker:

But no judge is stupid enough (not since Church of the Holy Trinty, anyway) to come out and say, “Yes, I know the law doesn’t actually SAY this, but the result is just so wrong otherwise that we will impose a solution that assumes the law says something it doesn’t.”

Really?

Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, we have understood the Eleventh Amendment not so much for what it says, but for the presupposition which it confirms. . . . The dissent’s lengthy analysis of the text of the Eleventh Amendment is directed at a straw man – we long have recognized that blind reliance upon the text of the Eleventh Amendment is to strain the Constitution and the law to a construction never imagined or dreamed of.

Seminole Tribe v. Fla., 517 U.S. 44, 54, 69 (1996) (internal quotation marks and citations omitted).

That’s Chief Justice Rehnquist.

*n rare cases, the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved some scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would thwart the obvious purpose of the statute.

Griffin v. Oceanic Contractors, 458 U.S. 564, 571 (1982) (internal quotation marks and citations omitted).

Rehnquist again.

There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government’s new-found reading of § 692 would produce an absurd and unjust result which Congress could not have intended.

Clinton v. New York, 524 U.S. 417, 429 (1998) (internal quotation marks omitted).

Justice Stevens.

In that same case, Justice Scalia opines in dissent that the language of the statute at issue is clear, and it is not an absurd result to limit the scope of the expedited review power of § 692 solely to individuals, but that nevertheless the Court should hear the claims of the corporate appellees because, citing to Sup. Ct. R. 11, “the case is of such imperative public importance as to justify deviation from normal appellate practice.” Id. at 455 (Scalia, J., dissenting). So notwithstanding the exclusion of corporations from the text of the statute, the corporate appellees should be heard expeditiously because the case is really important.

I can find many more similar cases in which the plain language of the law was ignored because its strict application would produce an absurd result. If your response to all this, Bricker, is to say, “Well, sure, but they’re not saying that the law was wrong…they’re just saying that the clear purpose of the statute should prevail over an overly formalistic application of its text in certain situations,” then that’s begging the question. If there are external criteria by which we judge a statute (or an Amendment) to be “wrong” other than the text, such inquiries are necessarily amorphous and are dependent on the weight the judge decides to give one indicia (a committee report, say, or a perusal of history), over another (common sense, say, or changed societal circumstances). And once you get into the “purpose and structure” of the thing, well… Saying that the spirit of the Eleventh Amendment mandates that you read beyond its text is no different from saying that the spirit of the Fourteenth Amendment mandates that you read beyond its text. Is it?

Even when dealing with the text by itself, there’s a tremendous amount of leeway (and rightly so), for judges to figure out what they think that Congress must have meant by its words. Viz. Justice Scalia, Justice Stevens, and the dueling dictionaries in MCI v. AT&T, 512 U.S. 218 (1994).

[Gadarene]

Neurotik:

I should have the right to yell “Fire” in a crowded theater or make threats against the life of the president, correct?

I don’t mean to pick on you, and I know it’s handy shorthand, but this always bugs me: The courts have never once said anything about shouting “Fire” in a crowded theater. Restricting someone’s right to shout “Fire” in a crowded theater in all circumstances makes absolutely no sense at all and isn’t helpful to a discussion of free speech, because of course people should be able to shout “Fire” in a crowded theater if, y’know, the theater is actually on fire.

It’s about falsely shouting “Fire” in a crowded theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.

Schenck v. United States, 249 U.S. 47, 52 (1919) (Holmes, J.).

It’s kind of an important distinction.

[askeptic]

You know, it just never occured to me that anyone would think Neurotic implied that one could not yell fire when there actually was a fire.

[Neurotik]

@Gadarene

It’s about falsely shouting “Fire” in a crowded theater

Well, duh. Freaking lawyers, I swear.

[askeptic]

@Neurotik

Well, duh. Freaking lawyers, I swear.

Hey, I am a lawyer and I knew what you meant. Don’t paint with such a broad brush.

[Gadarene]

Apparently I’m a plain meaning guy…

[Neurotik]

@askeptic

Hey, I am a lawyer and I knew what you meant. Don’t paint with such a broad brush.

You know you were just itching to make that correction. I know your type. Just admit it.

@Gadarene

Apparently I’m a plain meaning guy

A guy? For some reason I always thought you were a female. Or maybe that’s Gaudere or Gaspode. I get you people confused all the time.

[askeptic]

@Gadarene

Apparently I’m a plain meaning guy…

[Arwin]

Isn’t it altogether a bit worrying that justices are being appointed for political reasons and from the political institution? Doesn’t this negatively affect the three independent pillars of society?

also, this text leaves me wondering:

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.

You’d think this protects people having an abortion, gay marriage, and so on.

[ElvisL1ves]

@Mr. Moto

Sorry, but I think this proves the constructionist point much better. … And it’s not much of a stretch … And we don’t even need to justify it with emanations and penumbras either.

It ought to be easy for you to explain the difference between “not much of a stretch” and “penumbra”, oughtn’t it?

[treis]

@Mr. Moto

I’ll research this more fully, and I promise I’ll get back to you with some of the philosophical underpinnings. My Locke and Hume are at home. But when the government tells me that I have to leave a bar at 2 AM, that the strippers in Virginia have to wear bikinis, or that I have to settle for a low-cap magazine for my handgun, it’s pretty clear that some moral lines are being drawn.

These laws are passed under the power of the State to promote the public welfare. How does denying a citizen a beneficial and safe procedure fall under promotion of the public welfare?

On a side note if we want to talk about inventing legal reasoning out of thin air how about the power of the government to mandate a public day of rest? That to me is a much more egregious legal fabrication than anything in Roe vs Wade.

[Mr.Moto]

That you’re calling abortion a beneficial procedure demonstrates your presuppositions in this matter.

Others might not agree. You are familiar with this very active debate, yes?

And someone who sees abortion as a moral blight, or even as a medical procedure in need of close scrutiny, might want recourse to the law to oversee the practice, regulate it, or restrict it to a degree.

There’s nothing mysterious about this. It is how the government works.

[Mr.Moto]

@ElvisL1ves

It ought to be easy for you to explain the difference between “not much of a stretch” and “penumbra”, oughtn’t it?

The example used was the Air Force. Now, I think we can all agree that the power given to the Congress to raise armies is quite explicit, right?

Now, the Air Force began as certain administrative units of the Army, collectively called the Army Air Corps. So military units in the air predated the formal Air Force that was codified by law in 1947.

Neither the Air Corps nor the Air Force could be seen as presenting any constitutional difficulty, IMHO, since the power was explicitly given to Congress to create an army, and that army now had airplanes in 1947. The creation of a separate Air Force is properly seen as merely an administrative matter, and certainly not a constitutional one.

That administrative matter, in an admittively far-reaching and complex National Security Act of 1947, is what I meant by “not much of a stretch.”

It’s all a strawman, though. Opposition to Roe v. Wade doesn’t mean that I must find constitutional problems with the Air Force as well, merely because abortion and aviation aren’t in the Constitution. A textual approach would never take things so literally.

If it did, we could dispense with judges entirely, since there would be nothing to judge.

[treis]

@Mr. Moto

That you’re calling abortion a beneficial procedure demonstrates your presuppositions in this matter.

Others might not agree. You are familiar with this very active debate, yes?

What would you describe it as?

@Mr. Moto

And someone who sees abortion as a moral blight, or even as a medical procedure in need of close scrutiny, might want recourse to the law to oversee the practice, regulate it, or restrict it to a degree.

There’s nothing mysterious about this. It is how the government works.

Where does the government get the power to regulate the moral code of its citizentry and why do medical decisions fall under the umbrella of moral choices?

[ElvisL1ves]

@Mr. Moto

That administrative matter, in an admittively far-reaching and complex National Security Act of 1947, is what I meant by “not much of a stretch.”

Yet, if you didn’t like it, you’d denounce it as an impermissible “penumbra”, I suspect. No, friend, you drew a line in the name of principle, but can’t define that principle in terms that fit your examples. It’s inevitable to conclude that you’re rationalizing.

It’s all a strawman, though.

Glad you agree.

A textual approach would never take things so literally.

Then you’ve put yourself among those Bricker condemns as not respecting the Constitution’s literal meaning at all. A textual approach* is* literal.

[Gadarene]

Then you’ve put yourself among those Bricker condemns as not respecting the Constitution’s literal meaning at all.

Does this mean that, per my earlier post, Chief Justice Rehnquist is among those as well?

[askeptic]

Lest we forget Brickers assertion here is the relavent portion of Roe v. Wade :

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

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

FindLaw's United States Supreme Court case and opinions.

seems pretty well founded on case law, they wern’t just making stuff up. And it looks like SCOTUS believes in the right to privacy.