I don’t think there is any way you con torture the clause into giving a “right to life” as protection against an early abortion within the scope of the 14th Amendment.
If the phrase “public use” can be tortured into “private use”, I don’t see why not.
BTW, the 5th and 14th don’t guarantee a “right to life”, they just guarantees that you won’t be deprived of life w/o due process.
Here’s the beginning of this exchange:
Originally Posted by David Simmons
And as an aside. The august and learned Justice Scalia and our royalists on the board keep harping on there not being a right of privacy mentioned in the Constitution. Well, there isn’t a right to life mentioned there either, and the preservation of all fetuses isn’t one of the goals mentioned in the Preamble.
Originally Posted by John Mack:
There isn’t a right to life, but there is right not to be deprived of life without due process. Additionally, the 5th amendment clearly states that anyone accused of a capital crime (ie, someone whose life may be taken away) must be indicted by a grand jury. You have a right to due process, which is meant to protect your life from being taken away capriciously.
The subject was the right to life for a fetus and in addition I think an abortion isn’t per se a capricious taking of life
To answer the OP directly:
I suppose that what they are thinking is:
“Here’s great cover for me to authorize the beating of prisoners, the theft of elections, the illegal detention of people, dump on every last article in the First Amendment as I see fit, and in general run riot, all the while saying: It’s not MY preference, it’s what’s in the Constitution and I’m supposed to abide by the Constitution.”
Does this “example” make an sense? The purpose of an unusual punishment os to do something out of the ordinary.
Let’s say Joe Criminal has really pissed everyone off. They drag him to some local magistrate and judge him. Then they say “This guys a real ashole and we want to make an example out of him. Let’s do something different”.
So, instead of hanging or shooting him as is normally done in their time and their town, they instead decide to break him on the wheel. It’s unusual. It’s also cruel. It would seem that the town has deliberately chosen an unusual punishment, in order to be cruel.
Looking at it this way, cruel AND unusual do go together. People don’t choose an unusual punishment (normally) to be nice, they do it to be nasty and mean.
I’m sure you don’t, but many people do, including some judges. No?
Except that it’s been demonstrated in this thread that that is NOT what they do, since they DO often rule against their preferences, eg, the flag buring case. Oh, yeah, I’m sure those cases are just “cover” so that they don’t look to blatant about it, right?
When come back, bring facts not opinion.
I find the misrepresentation of the positions held by adherents of the various political philosophies to be counterproductive. Let’s start with the OP misconception of originalism. First, it is the farthest thing from the truth that originalists think that the law should not take into consideration any changes since 1789. The most obvious example is that there are 17 amendments passed since the adoption of the Constitution and Bill of Rights. But what an originalist tries to look at is the intent of the legislators who wrote the passage in question (the Constitutional Convention or the Congress which passed the amendment in question). A recent obvious example of this is Bricker’s courteous response to my request to distinguish between Loving and the SSM issue on equal protection grounds. He noted that the purpose and function of the Fourteenth Amendment, in the minds of the Reconstruction Congress, was to establish racial equality under the law. Loving, finding a Virginia anti-miscegenation statute to be unconstitutional, was applying the Equal Protection Clause in essentially the way that its authors had intended: as saying that state laws discriminating on the basis of race flew in the face of the Constitutional guarantees. The tendency of courts since Reconstruction to find in the Fourteenth a protection from state intrusion of other rights not related to racial discrimination, say the originalists, may be justifiable from the literal language of the text, but was not the original intent of its writers, and thus not proper applications of the amendment’s guarantees.
Textualists, on the other hand, suffer from their opponents’ presumption that they engage in a naive literalism. (Their extremist dicta, of course, lend credence to this theory.) In a previous constitutional-law argument here, I pointed out that a literal reading of the Constitution would find the United States Air Force to be unconstitutional, since Congress is only permitted to establish an Army and a Navy. Obviously, no sane textualist would hold this view; military conditions have changed since 1789, and just as warships need a separate structure from land forces, so too do bombers, fighters, and other warplanes. The general provision for the national defense justifies the Air Force. But a textualist would hold that the provision of adequate housing and medical care, if government is to be involved at all, the province of the state police power, not of any power delegated to the Federal government.
However, the idea, which John Mace advances, that “living Constitutionalists” have no respect for the letter of the Constitution, and the Tenth Amendment in particular, is utter bullshit. What we say is that there are some broadly worded provisions in the Constitution, and it is the proper province of the courts to decide how those broad authorizations of power and guarantees of rights apply in specific circumstances.
Like the Keystone Clause in Article VI, the Ninth and Tenth Amendments are neither tautological nor the exclusive proper foundation for any specific claim. Rather, they define the interrelationships of citizen, state, and Federal government. In this regard, it is worth noting that the Ninth guarantees rights and the Tenth reserves powers. Often one will see reference to “the states’ Tenth Amendment rights,” which is utter floccinaucipilification. The states do not have rights; they have powers delimited by their own constitutions and the Federal Constitution.
Similarly, the Ninth Amendment guarantees that not merely the rights explicitly spelled out in the Constitution but others are retained by the people and may not be disparaged by the Federal government (and, by extension through the Fourteenth, by the states either). An originalist would note the arguments in the First Congress and regarding ratification that the guarantees of specific rights might be read to mean that there are no others unless a beneficient, paternalistic government deigns to grant them (a position ironically held by the SDMB’s equivalent to the 1944 Republican ticket). What may these rights be? Judge Bork in a memorable image intended to suggest the inutility of the Ninth supposed that the sole copy of a given constitutional guarantee read something like “Congress shall not remove the right of the people to ####” where the crosshatches represent an inkblot. There would be no way to establish what was guaranteed by that statement, what was obscured by the inkblot.
The answer to this lies in the nature of judicial activity. No Federal court and few state courts are entitled to issue “advisory opinions” but must confine their actions to the resolution of actual “cases or controversies” where two parties holding different views on what is legitimately theirs individually seek the court to rule on the merits of their arguments. (This sounds like a reduction of all cases to civil law, but can be extended to the criminal by supposing that the accused is advancing the premise that he had a right to act as he did, while the government is saying that his actions contravened established law.)
There are certain rights not explicitly stated in the Constitution which the courts have found to subsist in the nature of liberty. Loving, for example, asserted that marriage is a fundamental right. The legislatures may establish ages and conditions for contracting a legally recognized marriage, but may not deny a couple the right to marry. (In context, the issue was whether a mixed-race couple might contract a marriage prohibited by the Virginia anti-miscegenation statute, but Warren’s opinion defines marriage as a fundamental right, going beyond the question of race.) Likewise, the courts have held that couples have the right to use contraception Griswold, this being an issue of private choice into which the states may not trespass, the right to autonomy in personal relationships Lawrence, the right to travel and relocate, etc.
The Ninth Amendment says that such rights do exist. It does not define them. The courts have explored the logic behind claims to such rights, and found them in the implications implicit in other rights guaranteed in broad language. This is commonly disparaged by the terms Justice Douglas used in Griswold, of “emanations and penumbras,” but in fact is the logical and proper course to apply in figuring out what exactly the Ninth Amendment guarantees. It may seem a sloppy and subjective means to those who would seek clearcut categories and explicit lists, but in fact is the proper and historic way for our court system to discern what is justice. Take gay sex, for example. There is no “constitutional right to commit sodomy” (in the classic anti-gay phrase); this was established in Bowers v Hardwick. However, if two adults choose to engage in a relationship in private, the state has no right to prohibit them from doing so, be it canasta or buttsex. The Fourth Amendment guarantees them “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and the Fourteenth guarantees that the states may not abridge the rights of citizens to their life, liberty , and property without due process of law and to equal protection under the law. To reduce this to a literalist reading that so long as the state does not actually search or seize, or may do whatsoever it lists so long as it follows proper procedure, is to create a totalitarian state supreme in its powers where no rights whatsoever are guaranteed. But the so-called “conservatives” would suggest that this is precisely what the Constitution allows.
The literal language of the Constitution is a guide to what it creates: a stable government protecting and defending the rights of free men, women, and children to live in peace. To go beyond the literal language is not merely permissible but required in the doing of equal justice under law. To quote Chief Justice Marshall, “We must never forget that it is a Constitution we are expounding.” To do otherwise is to create an all-powerful state beyond rjung’s direst warnings, or else to declare the Air Force unconstitutional.
That might be true of a pseudo Conservative who simply takes that label to further his own goals. No TRUE Conservative would ever want, or say any such thing.
One danger of broad interpretation is shown by the “liberalization” of eminent domain. In short, through a broad reading of the law, it was determined by the majority that we really had no protection, no right to hold and keep private property if some corporation wants it. If a company wants your property, they just get it and you get out. All under the pretext of generating more tax revenue for the city (never mind various tax shelters/dodges, smart accountants, book juggling to show a loss, or the company leaving the land to lay fallow). The dissenting opinions belonged to those most of us would call conservative and/or textualist. These dissenters in a nutshell, and to oversimplify, said that this “corporate confiscation” has nothing to do with public works or general welfare, and further, that it is not the purpose of government to grease the skids for business. Which side did more damage to individual rights?
In some other case, the ruling was on whether police could not use infrared or other “cool gadgets” to spy on people in their houses, and maybe do this randomly with no probable cause (?). The argument in favor of doing it rested on “We didn’t go into the house, so we don’t need a warrant. Besides it makes people safer”. That looks like a broad reading, a bending of the rules. The argument against rested on “It is a search of a private residence regardless of the method used, and yes that does require probable cause and/or a warrant”. That looks like a more narrow reading. Sorry, but I can’t remember who ruled, or would rule, which way.
Personally, I think there are times when a broad interpretation is a good thing, and times when a narrow interpretation is a good thing. It depends on the situation and the end result.
With a textualist, you have a fair idea which way he is going to go, right in the words as written. He or she may not want to rule that way, as it goes against their personal opinion. They may think the law as written is junk. But, they will rule because that is what the law says as written. That is their job. You at least know where they are coming from. If indeed the law is a piece of crap, the fault lies with those who created and wrote it. But unless it violates something, it may be valid constitutionally (think Prohibition - a shitty law based on what someone decided would be best for the rest of us, but not strictly unconstitutional). With a very broad interpreter, who may have his own agenda or ideology, you have a loose cannon. If a person goes in with an agenda, they can really torture the words of a law and stretch it like Mister Fantastic, as a “broad interpretation” to get what they wanted. It was a conservative textualist (guess who) that said the President can not do away with habeas corpus or due process, no matter what “national security need” or state of war/unwar exists. It was a broad interpreter who was trying to say “yes I can”.
The real solution would be to elect Congress critters and Presidents that are honest and competent, instead of voting for hacks, ideologues, horse shit salesmen and idiots along party lines or The Buzzword Of The Day. But that is asking too much I guess.
In re-reading my posts concerning the “living constitutionalists”, I agree that I overstated the frequency with which some jurist ignore the plain text of that document (although perhaps not how often posters here do so). Criticism noted and accepted. However, that some justices **do **ignore the text at times, is certainly not “bullshit”, as evidenced by no less a jurist than S.D. O’Conner in her dissent in Kelo (my emphasis):
unless you want to quibble about the semantic difference between “ignore the text” and “effectively to delete the words”.
Roe offers another key criticism of what has been mainstream jurisprudence in recent times. That decision has been harshly criticized by legal scholars from across the political spectrum as having stretched the textual meaning of the constitution beyond reasonable bounds. That in and of itself should be a red flag, or at least a yellow “caution” one. Having found abortion to be protected by a right to privacy, it creates distortions in the law that cannot be logically reconciled, but can only be attributed to a desire to produce a particular public policy result (abortion is legal, but prostitution and assisted suicide are not). I firmly believe that public policy should be determined by the people, through the legislature, and not through the courts.
I lean heavily toward a libertarian position, and could easily support a philosophy of interpreting the people’s right broadly and the government’s powers narrowly. But I could not endorse a system that interprets the people’s rights broadly only when certain public policy goals are to be achieved. In fact, I’d be happy to view the 9th amendment as a source of rights, or at least a statement that rights must be explicitly prohibited to be constitutional. That would pave the way for such things as legalized prostitution, drug use, and the elimination of the minimum wage (to name just a few). But I don’t believe this country was founded on those strict libertarian principles, and it would be incorrect to read that into the constitution.
And finally, I would agree with you that the use of terms like “textualist”, “originalist”, and “living constitutionalist” serve more to obscure the arguments than to shed light on them, since there is so much disagreement and misunderstanding of what those terms mean. Rather, it is almost always a question of whether the constitution should be interpreted narrowly or broadly. But to pick the narrowness or broadness of the interpretation based on the desired result is not something I find to be acceptable. No system is perfect, but I think that Scalia’s preference of interpreting the constitution narrowly (or only as broadly as the plain text can reasonably allow) and consistently is the best course of action to ensure that we, the people, are allowed to govern our affairs as we see best to do so.
I question what appears to be the tacit assumption that broadly interpreting the rights and powers retained by the people leads to an “anything goes” philsophy of judicial actions.
I see nothing wrong with assuming that the basis of the Constitution is that the people have all rights that don’t conflict with the purposes of the Constitution such as common defense, general welfare, etc., etc. And that those rights can’t be denied, as the 9th Amendments requires, whether or not they are specifically enumerated. Further, that the powers of the government are strictly limited to those enumerated and all laws must meet the test of necessary and if the law is necessary it must properly limit rights, i.e. not too much and not too little.
I agree that the eminent domain decision was troubling but no more troubling than the court’s upholding of the internment of US citizens of Japanese descent which happened long before the brou-haha over judicial activisim was ever started.
As a liberal, and you KNOW I’m a liberal, I feel that flag-burners are idiots who shoot their cause in the foot every time they burn a flag, because MOR folks hate that. Doesn’t seem ALL that farfetched that guys like Scalia and Thomas might find it agreeable to make rulings that allow liberal idiots to continue alienating the MOR while getting some cred on freedom of speech issues.
It’s true we can’t KNOW what they really think if they are willing to lie about it, but this invalidates your speculations as surely as it invalidates mine. And surely you are not so naive as to take the pronouncements of those who made the Bush v. Gore decision at face value?
I don’t find any use in engaging in debates about conspiracy theories that can neither be proven nor falsified. Particularly ones that only the most strident partisans of one side would support. So let’s not derail this thread by that hijack.
However, if you want to start a thread on that subject and show us how well you can defend it, I’d love to see it. It would be interesting to see exactly how many people of the liberal persuasion you could convince.
Speak for yourself.
I contend the brou-haha should have started at least by 1905, with Lochner v. People of the State of New York, a clear-cut case of the use of the magical “substantive due process” to reach a result that the people have an inviolate “right” that’s nowhere in the Constitution.
Hell, it should have started before that. Church of Holy Trinity v. U.S. in 1892 was blatant activism, although admittedly not via the rubric of substantive due process.
So your reactionaryism would have you repeal not only the 20th century, but part of the 19th as well?
I don’t have a problem with the democratic process. Just like those who pushed for the adoption of the Bill of Rights, I believe in a democracy in which certain personal decisions are not subject to majority rule. It’s one thing to say that people are free to choose how to govern themselves. It’s another thing when they decide to govern themselves by telling me I can’t do something. When it comes to economic matters (employment, environment, consumer protection, etc.), I’m perfectly content with the idea that the law will help to society that benefits all. But when it comes to purely personal matters (sexuality, reproduction, etc.), I don’t believe democracy has any business butting its nose in.
Of course, this presents exactly the dilemma that Bricker’s comments and my own exposition of my feelings implies – how do you get a governmental system that on the one hand is logical, stable, and has integrity and on the other hand does not deny substantial justice to certain disfavoured minorities (or disfavoured majorities in the case of reproductive freedom)? In our current circumstances, it seem we cannot have both.
I’d say a Monarchy would do it. The problem would be selecting and raising proper monarchs.
No.
Please note that this question assumes facts that haven’t been shown – and, as it happens, that are not so.
I’ve been a member of this board for over five years; I’ve written well over 10,000 posts. You may serach them all - in vain - for any indication that I advocate mass reversal of these activist court decisions.
In numerous threads discussing this, I have said that the general approach I recommend is not reversing decades or centuries of case law and throwing our legal system into chaos. I do believe we should stop the madness - that is, recognize that other methodology is suspect and stop deciding cases based on anything other than the fair and reasonable meaning of the words of the law. We cannout continue to crawl our on the rotten limb. But having built a fairly complex treehouse on that limb, I recognize we cannot realistically tear it down.
In short: I’m not for wholesale reversal. I’m for adopting the correct approach henceforth.
I know we disagree, sometimes quite strongly, on issues of constitutional interpretation. In that spirit, I’d welcome your critique of the methodology I discuss in post #127.
BTW, John Mace, my objection was not to your statements per se but to the broad-brush tarring of “loose constructionism” (I’d like to see a better term coined). Thanks for your balanced and well-spoken answer.
And if I read Scalia’s writings on stare decisis correctly, that’s his view as well. Right?