Well that didn't take long. SD Senate votes 23-12 to ban nearly all abortions.

[Hamlet]

@Bricker

There is not. There should be. And if the courts interpreted it correctly, then the need for actual amendments guaranteeing those rights would be clear, and we’d have them written in black letters in the Constitution by this time.

There is quite a debate into the “what ifs” if your view of the Constitution had triumphed throughout history. Maybe we would have ended up with a Constitution like Alabama’s, with its 770 Amendments to cover most any issue that arises, without the need of judicial interpretation. Maybe right thinking people would have realized slavery, segregation, and oppression of minorities are not good things, and they would have been added without the need for a Civil War, massive racial unrest, and lychings. Maybe people would have recognized the impropriety of criminalizing sexual relations between adults. However, given the history of this nation, I sincerely doubt it. Passing an Amendment is, of course, the preferred method to enshrine rights, but it is not the only way. The legislature, the executive, and the judiciary all have a role to play. Why would the definition of rights be the sole province of the legislative branch? The Constitution doesn’t say that, and it flies in the face of their concerns over separation of powers. But when you have a majority of people who insist on denying those rights to others, your view won’t work. History, human nature, and reality keep getting in the way. Our country has suffered greatly because we couldn’t live up to the ideals of the Constitution. Hell, even the founding fathers couldn’t.

Many of the founding fathers realized this. They set up a judiciary that was not subject to the political process (in the normal sense of the word), to protect the Constitution and the rights of people. Many founders were very concerned that your view of the Constitution would prevail and that the enumeration of certain rights would deprecate unenumerated rights. So they put it in the Constitution, in the Ninth Amendment.

@Bricker

What the Ninth Amendment must therefore protect is the class of rights necessary to directly implement the rights mentioned in the Constitution

Wherever does a textualist get this idea? Is it in the language? Is there some part of the Constitution I’m missing? Maybe you could get a Constitutional Amendment to say so.

If you accept the judiciary’s role is one to protect and interpret the Constitution, that must include the power to determine rights, and to balance those rights against governmental powers. That’s what the judiciary is there for.

@Bricker

The farther we step away from the ennumerated rights, the skaier ground we’re on, judicially, and the stronger the need for a legislative, not a judicial solution.

I would most certainly prefer legislative solutions. I would prefer that a majority of people wouldn’t want to legislate our bedrooms (well, actually THEIR bedrooms), our choices in contraception, who we marry, who can eat at a lunch table, and where someone can ride on the bus. But they do. And the founders realized that these, and a multitude of others, acts of the majority need to be protected against. And they gave that power, in part, to the judiciary.

[Bricker]

@Hamlet

I would most certainly prefer legislative solutions. I would prefer that a majority of people wouldn’t want to legislate our bedrooms (well, actually THEIR bedrooms), our choices in contraception, who we marry, who can eat at a lunch table, and where someone can ride on the bus. But they do. And the founders realized that these, and a multitude of others, acts of the majority need to be protected against. And they gave that power, in part, to the judiciary.

With what limit?

When a federal judge can take over a school system, acting as its director, determing how budgets are formulated and spent… that is not a power the judiciary was intended to have, nor is it one they SHOULD have.

[Gorsnak]

@Bricker

With what limit?

When a federal judge can take over a school system, acting as its director, determing how budgets are formulated and spent… that is not a power the judiciary was intended to have, nor is it one they SHOULD have.

And if you can find anyone who’s said differently on this board, I’d be interested to see it.

I believe you are holding a position that is untenable. One of your central arguments is that if judges are allowed to go beyond the text to any extent at all, then there’s essentially no limits on their power - they are free to make up any shit they want. You obviously believe that there’s no principled place to stop once one moves beyond the plain text.

And yet, you say you’re fine with restrictions on free speech which are completely made up by judges in direct contradiction to the text. There’s an entire edifice of judge-invented jurisprudence with regards to equal protection with different levels of scrutiny and the various tests which go with each of those, none of which is based on anything whatsoever in the text.

But, you say, those things have to be read into the text, because straight literal readings lead to ridiculous results. Well, I agree. But the point is, judges must go beyond the text. But by your slippery slope argument, this means it’s already inevitable that there is no principled place to stop short of some of the more ridiculous school integration decisions. On the other hand, if you now wish to argue that there is some way to stop short of that, it’s up to you to demonstrate that the place on the slope you favour isn’t slippery, but the place that Hamlet favours isn’t. And I have no idea of what that argument could even look like.

The obviously conclusion is that the slope isn’t slippery, and that you’d do well to abandon that particular argument.

[Gorsnak]

@Gorsnak

On the other hand, if you now wish to argue that there is some way to stop short of that, it’s up to you to demonstrate that the place on the slope you favour isn’t slippery, but the place that Hamlet favours isn’t.

That should obviously read "but the place that Hamlet favours is.

[Gladstone]

@Bricker

There are two questions: is legal abortion (with whatever restrictions we care to consider) a sound public policy? AND… is it a matter of Constitutional dimension?

The second question should be answered in the negative. If you WANT to make it a Constitutional question, gather up two-thirds of Congress and three-fourths of the states, and make it one. Otherwise it’s a constitutional question on the say-so of five justices, and a new set of five can change that answer any time.

Perhaps the five justices deciding is the best solution for now. From a larger policy standpoint, one of the worst things that could happen is to create a permanently-aggrieved segment of the population who may commonly resort to unlawful means to achieve their goals. If abortion was nationally outlawed or declared protected and legal through a Congressional act, this would create such a permanent aggrievement. On the other hand, as administrations come and go, so will justices and their decision regarding the constitutionality of abortion may change to fit the dominant popular opinion (without ruling out further changes down the road).

Ultimately, if each state were to decide the legality of abortion themselves, citizens of a state wanting an abortion would be forced to travel to states where abortion was legal. This would put them into the stream of interstate commerce, and thus the ambit of Congressional authority. Most abortion opponents seem to reject abortion because of vague or specific religious concerns. They wouldn’t be satisfied with a states’ rights solution and would instead push for abortion to be banned entirely, everywhere. This interstate commerce resulting from a state’s ability to ban abortion within the state would give Congress the necessary pretext to further regulate, if not outright ban, interstate commerce involving abortion (assuming it could be more narrowly tailored than my description).

Instead, at least for now, it seems that Supreme Court justices who do not have to rely on lobbying groups from one side or the other for campaign support, and could center themselves according to a more general view of American public opinion (should they choose to do so) is preferable.

[John_Mace]

Hamlet, Gorsnak: What do you think of a Senator who would refuses to confirm a SC justice nominee who came out and said “I think *Roe *was poorly decided, and would be wililng to overturn it if a new case arose and a good argument for overturning it was made”?

Myself, I favor the textualist approach but I’m more than willing to concede that it isn’t the only valid approach to constitutional interpretation. However, it seems that many on the left want to have it both ways (and I think this is what started this hijack in the first place). They want to claim that the constitution is fluid and needs to change with the times, but are unwilling to accept changes that go against their own political leanings. So I find it highly disingenuous of those people who ridicule textualism but then insist on enforcing their own rigid orthodoxy-- not only because it is so hypocritical, but I think that is the main reason the confirmation process has become the farce that it is today.

Note that I purposely worded the hypothetical in the first parapraph so that the nominee is not saying he has already made up his mind to overturn Roe, but that he is certainly willing to do so under the right circumstances.

[treis]

@Bricker

But it’s that totem-pole approach I object to. Deriving a whole, expansive right - “privacy” from the vague phrasing in the Fourteenth Amendment is questionable enough.

Like I said, there was no totempoling. The reasoning was not, citizens have a right to privacy, therefore they have the right to abortions. The reasoning was that abortion was included in the right to 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.

Your objection rests soley on the phrase Right to Privacy, when that is simply a catchall phrase for an interpetation of the 4th, 5th, 9th and 14th amendments. It is no different from something like ceremonial deism. It simply is a phrase used to represent a line of interpetation, instead of rehashing the argument in every case.

@Bricker

Then deciding that “privacy” AS THE CONSTITUTION REQUIRES means no government interference in the first trimester, but permits government regulation in the third trimester, is simply unsupported.

Is there anything else you would like to declare for us at this time?

@Bricker

If you took fifty people, all unfamilar with the history of Roe and abortion in this country, and said: “Read the text of the Fourteenth Amendment,” – how many of the fifty would reach the same conclusion that Roe did?

According to the LA Times 68% of Americans do not want Roe overturned, while 29% do. Thats 34 that, I suppose, would reach the same conclusion as in Roe, 14.5 that wouldn’t and apparently 1.5 that couldn’t make up their minds.

link

[John_Mace]

@treis

According to the LA Times 68% of Americans do not want Roe overturned, while 29% do. Thats 34 that, I suppose, would reach the same conclusion as in Roe, 14.5 that wouldn’t and apparently 1.5 that couldn’t make up their minds.

link

I find the pro-choice vs pro-life numbers to be a better gauge. Too many people think abortion would illegal if *Roe *were overturned and they don’t realize that it would just return the issue to the states where, in most instances, it would remain legal.

[ElvisL1ves]

@John Mace

They want to claim that the constitution is fluid and needs to change with the times, but are unwilling to accept changes that go against their own political leanings.

Bricker himself has made it clear that he separates the validity of the process from his agreement with the result obtained; why don’t you?

So I find it highly disingenuous of those people who ridicule textualism but then insist on enforcing their own rigid orthodoxy-- not only because it is so hypocritical

Nothing of the sort. There is quite a bit of ridicule, not of “textualism” itself, but of the assertion by self-described textualists that their interpretation is the only, or most correct one, by some objective standards. When they’re pressed for clarification of what those “objective standards” are, they come down to defining “reasonability”, and naturally one’s *own * viewpoint is the most reasonable, since it produces the end one most desires. So in fact, textualism, like most isms, is merely a rationalizing cover story for the same result-driven approach they condemn others for, the difference being that its proponents won’t admit it and may not even realize it. Clear now?

What “rigid orthodoxy” are you referring to, btw? Secular humanism, perhaps? Are only those to your left, i.e. most of us, guilty of that sin? Tell us more about disingenuousness, please do. :rolleyes:

I think that is the main reason the confirmation process has become the farce that it is today.

Really? I would blame it on ideologues of all stripes who don’t, or can’t, recognize their own ideologuism - and no group has a more severe case of that disease than self-described libertarians, unless it’s textualists.

[treis]

@John Mace

Hamlet, Gorsnak: What do you think of a Senator who would refuses to confirm a SC justice nominee who came out and said “I think *Roe *was poorly decided, and would be wililng to overturn it if a new case arose and a good argument for overturning it was made”?

I don’t understand this objection at all. A Senator not voting to confirm a SC nominee, becuase they would potentially overturn Roe is no different from a President refusing to nominate someone who declared they wouldn’t overturn Roe.

@John Mace

Myself, I favor the textualist approach but I’m more than willing to concede that it isn’t the only valid approach to constitutional interpretation. However, it seems that many on the left want to have it both ways (and I think this is what started this hijack in the first place). They want to claim that the constitution is fluid and needs to change with the times, but are unwilling to accept changes that go against their own political leanings. So I find it highly disingenuous of those people who ridicule textualism but then insist on enforcing their own rigid orthodoxy-- not only because it is so hypocritical, but I think that is the main reason the confirmation process has become the farce that it is today.

Unwilling? Its not as though anyone is going to revolt if Roe is overturned. They just would be unhappy that a ruling went against their interest. Note, they would be unhappy becuase the ruling went against their interest, not becuase of any process issues. There is nothing hypocritical about that in the least bit.

And come on, its not as though Republicans collectively decided that textualism was the right approach based on legal philosophy. They like textualism becuase it aligns with their political agenda. Do you think Bush nominated Alito or Roberts becuase of a principled stand for textualism, or is it becuase Alito and Roberts align with his political beliefs?

[treis]

@John Mace

I find the pro-choice vs pro-life numbers to be a better gauge. Too many people think abortion would illegal if *Roe *were overturned and they don’t realize that it would just return the issue to the states where, in most instances, it would remain legal.

Huh? The question is, what would an average American rule in Roe. How is their stance on abortion a better indicator than, “Should Roe be overturned?”

[John_Mace]

@ElvisL1ves

Bricker himself has made it clear that he separates the validity of the process from his agreement with the result obtained; why don’t you?

Please show me where I’ve ever said otherwise. As a person who leans heavily libertarian in my politics, a textualist interpreation often leads to outcomes I strongly disagree with, politically. Abortion is a prime example. I want abortion to be legal.

What “rigid orthodoxy” are you referring to, btw? Secular humanism, perhaps? Are only those to your left, i.e. most of us, guilty of that sin? Tell us more about disingenuousness, please do. :rolleyes:

May I suggest a place for you to stick your rolleyes? The rigid orthodoxy, as I made crystal clear, is that *Roe *must not and cannot be overturned.

Really? I would blame it on ideologues of all stripes who don’t, or can’t, recognize their own ideologuism - and no group has a more severe case of that disease than self-described libertarians, unless it’s textualists.

Well, you’d be wrong. And it wouldn’t be the first time either. Now, if you want to continue debating, drop the rolleyes crap and the snide remarks. This has been a largely civil debate up until this point. Let’s keep it that way.

[John_Mace]

@treis

I don’t understand this objection at all. A Senator not voting to confirm a SC nominee, becuase they would potentially overturn Roe is no different from a President refusing to nominate someone who declared they wouldn’t overturn Roe.

Yep. If you’re going to try and trap me into some hypocritical position on this, you won’t succeed.

And come on, its not as though Republicans collectively decided that textualism was the right approach based on legal philosophy. They like textualism becuase it aligns with their political agenda. Do you think Bush nominated Alito or Roberts becuase of a principled stand for textualism, or is it becuase Alito and Roberts align with his political beliefs?

As I’ve said over and over and over again, too many Republicans who claim to want a textualist approach actually want conservative judicial activism. This includes Bush. But that doesn’t mean that principled textualists don’t exist. Just as principled non-textualists exist as well.

[Gorsnak]

@John Mace

Hamlet, Gorsnak: What do you think of a Senator who would refuses to confirm a SC justice nominee who came out and said “I think *Roe *was poorly decided, and would be wililng to overturn it if a new case arose and a good argument for overturning it was made”?

Understand that up here the appointment of supreme court judges is an extremely different process and that I think the highly politicized nature of your supreme court is a regrettable state of affairs. It seems to me that our process has served us better than yours has served you, but that could have more to do with the fact that by and large we’re not as divided over social issues as you are. That said, it’s my understanding that the Senate can oppose or support a nomination for pretty much any reason it wants, and if a Senator prefers a given sort of judicial philosophy, there’s nothing wrong with voting against nominees with other philosophies. Making use of procedural tricks to block a nomination in the face of majority support would be another issue, however. Understand, though, that the question assumes a structure of things that I wouldn’t be entirely happy with.

More generally, I’m always a little unhappy with the way the discussion is framed. I don’t think that expansive readings of personal liberty rights go against either the text or the intent of the authors of that text. I do think that textualism and originalism are legitimate approaches to interpretation. I think that the application of those approaches by certain judges (Scalia being a prime example) is wrong-headed. Scalia is actually an interesting example, because I think he’s eminently qualified in a technical sense for his position, but that his temperment makes him a poor choice for a top court. Some of the his dissents that I’ve read have struck me as extremely mean-spirited (with respect to gays and lesbians particularly), and he often seems somewhat contemptuous of his colleagues. I can quite easily imagine a justice who voted in pretty much exactly the same way as Scalia but who wrote much differently that I would have a lot of respect for.

[Hamlet]

@John Mace

Hamlet, Gorsnak: What do you think of a Senator who would refuses to confirm a SC justice nominee who came out and said “I think *Roe *was poorly decided, and would be wililng to overturn it if a new case arose and a good argument for overturning it was made”?

As with all things, it depends. If your nominee is like Bricker and feels that, unless it’s in the text of the Constitution, it isn’t a right, and would overturn Roe on that basis, I would probably vote against the nominee. If the nominee stated that she/he accepts “substantive due process” (or whatever the kids are calling it these days), but that the right to privacy does not extend to the decision to abort, I’d be willing to confirm them. My main concern is not having a judiciary that abdicates it’s role in the protection of rights.

@John Mace

Myself, I favor the textualist approach but I’m more than willing to concede that it isn’t the only valid approach to constitutional interpretation. However, it seems that many on the left want to have it both ways (and I think this is what started this hijack in the first place). They want to claim that the constitution is fluid and needs to change with the times, but are unwilling to accept changes that go against their own political leanings.

This seems to be the same charge that Bricker brings out … well every chance he gets: that any rejection of textualism or originalism (or whatever the kids are calling it these days) automatically leads to judicial activism, unfettered power, and hypocrisy. As Gorsnak, and GFactor before him in other threads, and other posters before them, pointed out, any method of judicial interpretation can be abused. The claim that textualists are somehow immune from those problems is just silly.

I agree that a judge who finds that Bricker has a Constitutional right to rubdowns from Helen Hunt would be wrong. I actually think the court got it wrong in Roe. But merely because a judge reaches a result that I don’t like doesn’t make textualism any more appropriate.

@JohnMace

So I find it highly disingenuous of those people who ridicule textualism but then insist on enforcing their own rigid orthodoxy-- not only because it is so hypocritical, but I think that is the main reason the confirmation process has become the farce that it is today.

Sure it is a farce. And I think the politicalization of the judiciary has done more damage to the integrity and public perception of the judicial branch than 1000 Earl Warrens could have.

[treis]

@John Mace

Yep. If you’re going to try and trap me into some hypocritical position on this, you won’t succeed.

I’m not trying to trap anyone anywhere. I just don’t understand what you are getting at.

@John Mace

As I’ve said over and over and over again, too many Republicans who claim to want a textualist approach actually want conservative judicial activism. This includes Bush. But that doesn’t mean that principled textualists don’t exist. Just as principled non-textualists exist as well.

Why is it then, that you put all of the blame for the “farce” of a confirmation process on the “hypocritcal” non-textualists, instead of these hypocritical textualists who simply want conservative judicial activism?

[John_Mace]

@Hamlet

As with all things, it depends. If your nominee is like Bricker and feels that, unless it’s in the text of the Constitution, it isn’t a right, and would overturn Roe on that basis, I would probably vote against the nominee. If the nominee stated that she/he accepts “substantive due process” (or whatever the kids are calling it these days), but that the right to privacy does not extend to the decision to abort, I’d be willing to confirm them. My main concern is not having a judiciary that abdicates it’s role in the protection of rights.

Got it.

This seems to be the same charge that Bricker brings out … well every chance he gets: that any rejection of textualism or originalism (or whatever the kids are calling it these days) automatically leads to judicial activism, unfettered power, and hypocrisy. As Gorsnak, and GFactor before him in other threads, and other posters before them, pointed out, any method of judicial interpretation can be abused. The claim that textualists are somehow immune from those problems is just silly.

That’s not at all what I’m saying. If there’s one thing I’ve learned from these debates it’s that judicial activism is very hard to pin down and is largely in the eyes of the beholder. What I’m objecting to is a Senator like Feinstein who has stated categorically that she won’t confrim a justice unless she is certain that justice will uphold Roe.

I actually think the court got it wrong in Roe. But merely because a judge reaches a result that I don’t like doesn’t make textualism any more appropriate.

I’m not saying that you should. My point was simply to find out if you find objectionable a position, such as Feinstein’s. As bad as the Republicans can be at times, they had (at least up until now) not required that justices conform to so narrow a spectrum of thought in order to get confirmed.

[John_Mace]

@treis

Why is it then, that you put all of the blame for the “farce” of a confirmation process on the “hypocritcal” non-textualists, instead of these hypocritical textualists who simply want conservative judicial activism?

I’m not linking the hypocracy to their non-texualist approach. You don’t need to be a textualist to think Roe was wrongly decided (see Hamlet’s post, above). I’m saying that what has largely poisoned the process is the insistence of many Democrats that the *Roe *orthodoxy be upheld at all cost. I’ve not seen the Republicans push the anti-*Roe *position to anywhere near that extent. If they had, RBG would’ve been rejected out of hand.

[Hamlet]

@John Mace

I’m not saying that you should. My point was simply to find out if you find objectionable a position, such as Feinstein’s. As bad as the Republicans can be at times, they had (at least up until now) not required that justices conform to so narrow a spectrum of thought in order to get confirmed.

I guess it depends on what you call a “narrow spectrum of thought”. Voting against a judicial nominee simply because they would vote against a specific case is troubling, but finding out that that nominee rejects “substantive due process” and the precedential value of those cases would be valid. Unfortunately, for good or ill, Roe has become the touchstone for determining a judge’s view fo the Constitution.

[treis]

@John Mace

I’m not linking the hypocracy to their non-texualist approach. You don’t need to be a textualist to think Roe was wrongly decided (see Hamlet’s post, above). I’m saying that what has largely poisoned the process is the insistence of many Democrats that the *Roe *orthodoxy be upheld at all cost. I’ve not seen the Republicans push the anti-*Roe *position to anywhere near that extent. If they had, RBG would’ve been rejected out of hand.

Its funny you bring up Ruth Bader Ginsburg, of the “Ginsburg Precedent,” as an example. Its my understanding that she was the first to refuse to answer questions about specific legal points. The questions she refused to answer were generally from Republicans on such topics as women’s rights, gay rights, and yes, abortion. No different from what the Democrats did to Roberts and Alito.