“Face with two models…” might be a false dichotomy, but it’s a dichotomy that didn’t, as I read it, offer a non-activist option.
Don’t mistake my analysis of the politics of the situation (ie, what will happen) with what I think should happen. And while I agree with your statement in general, we’d still come to different conclusions. I’d say your statement makes the case for having textualists in the SCOTUS. I doubt you’d agree with that. 
As to the issue at hand, I think it’s a tough one. The establishment clause is vague, and open to interpretation. If the pledge said “under our Lord and Savior Jesus Christ”, I’d agree that it’s unconstitutional. “Under God” is much less specific, but there is still some nuance. If the pledge said “under whichever god a citizen may worship” that would probably be OK. As it is, there is no question that “God” (big “G”) refers to the Judea/Christian (and possibly Islamic) God. If it’s not forbiden by the constitiution, it’s pretty goddamn close (pun intended).
You know what? You’ve just about persuaded me that Griswald (and therefore Roe) was activist. In the process of trying to come to grips with the now inevitible overturning of Roe, I’m trying to convince myself that maybe it wouldn’t be the end of the world, that abortion rights would eventually be adopted by most states anyway, and that we need something stronger on a federal level to rest it on than the Right of Privacy (which, shaky as it is, I would still argue has more to support it than Ceremonial Deism, but I concede that it seems to have a been an ad hoc construction and amounts to basically trying to cover a bald spot in the Bill of Rights by combing it over with marginally related amendments). If nothing else, maybe the loss of the Right to Privacy will lead to an explicit amendment…something I believe would be a good issue for Dems and which would generate popular support.
Having said all that, the fact that SCOTUS may have been activist on one occasion does not mean it has a license to do it on subsequent occasions. I would also point out that Griswald and Roe granted rights to the people while “Ceremonial Deism” grants power to the government. A not insignificant distinction.
On point 2 there will be a HUGE wall of noise from the Dems about the SC being appointed by Repubs, which will be hard to spin since it’s so ridiculously true. Whether part 3 will happen is anybody’s guess … I’m thinking the Repub/right swing of the pendulum has just about peaked.
From time to time recently, I’ve been sensing that the religious right, which has steadily been gaining power and influence for over 20 years, just may have reached the end of it’s pendulum swing. Not sure if that’s just wishful thinking, though.
Just as a ruling against “under God” would be a boon to the Pubs, overturning of *Roe *would be a boon to the Dems-- a pretty big one. As strident as many Pubs are about overtunring Roe, I’m fairly confident that most Republican Senators at least understand this political reality and wouldn’t want to see that happen either.
A constituional amendment to support abortion probably wouldn’t pass at the federal level. I’d be surprised if Congress could even agree on what the wording would be, much less get it past 3/4 of the states.
Unless Mr. Newdow is a political candidate running on the Democratic ticket (or endorsed by same), I don’t see how anyone could reasonably declare this to be a problem for the Democrats.
Of course, such an argument won’t hold water with some folks on the religious right, who aren’t very reasonable to begin with… 
I’m sure you don’t. So, let’s not hear any more whining about how the Republicans fanned the flames of the SSM issue to win in '04. Because it’s the exact same principle, except that many more Americans are in favor of “under God” than are opposed to SSM, so “under God” is a probably a more potent issue.
I wasn’t talking about an Abortion Rights Amendment but an explicit Amendment guaranteeing the Right to Privacy. It’s the basis for Roe, and Roe can’t be overturned without overturning Griswold (the ruling which infamously found the Right of Privacy in the “penumbras and emanations” of the Bill of Rights).
Let’s see the Pubs try to resist a movement to establish an explicit Right to Privacy*. That should be a slam dunk for the Dems.
I don’t see why they have to do anything, politically. What political pressures are they under? It’s not like they need to win re-elections.
OK. But a right to Privacy is very amorphous, and it’s likely that the Republicans would demand that such an amendment be worded so that it doesn’t guarantee abortion.
It’s a lot easier for them to support the status quo, where they can rant against abortion while still knowing that *Roe *won’t be overturned.
Of course Roe could be overturned without touching Griswold. You simpky distinguish the cases: Griswold stands for privacy, but that privacy does not include abortion.
Feh. We should just amend the pledge to make everyone happy:
I do or do not pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, under or not under a God which may or may not exist, indivisible for the time being, with liberty and justice for all or some or none.
Why not? How do you get around, for instance, doctor/patient confidentiality?
The same way you get around it for any medical procedure which is illegal, such as assisted suicide.
What John Mace said. Griswold doesn’t give doctors the right to administer heroin to patients, to assist their patients with suicide, or to perform any other illegal act on their patient.
What? You mean complaints like these were totally fabricated? You mean this admission never happened?
For your analogy to hold any water, you’d have to show that the Democratic Party and/or major Democratic candidates were publically proclaiming their unwavering support for Mr. Newdow’s actions – which, given the craven spinelessness of the Dems, would be a sight indeed.
There’s no nuance to me.
I’m an atheist. Any Pledge of Allegiance that calls the United States of America a nation under turns me into an outsider. I am an American, and I don’t live under ‘god’. It’s my country too, and the First Amendment pretty much says it can’t establish itself as a theist state.
Wait. Are you now saying you DO see how the issue of this thread could work against the Dems?
And I never said the flames weren’t fanned, I just said that you shouldn’t whine about it, since you claimed to be unable to see how it could happen.
Why? Neither the Democratic Party nor any major candidate supported SSM in '04 either.
Restricting the Right to Privacy requres a “compelling state interest.” There is no state interest in preventing abortion if the procedure is safe and voluntary. As long as Griswold exists, it protects reproductive choice for women unless you can show a public interest in preventing it. Since permitting it harms no one (and banning it would actually create public harm), then restricting it would impose an arbitrary restriction of privacy for no compelling interest.
And a religious belief by some that an embryo or a fetus is a “person” does not constitute a legitimate state interest. The state has no interest - or even ability- to codify a religious belief into a law, even if that belief is held by a majority- indeed even a totality- of citizens.