posted
Good question. I'm not answering it, yet at least. I was just responding to the ridiculous assertion there was no privacy right in the constitution.
Actually, I'll point out that the particular wording of the privacy right may make it particularly applicable to abortion -- is it ever reasonably the state's business that a person is pregnant? If one does not take the person-hood of a fetus as a given, which the law never has.
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posted
The 4th amendment was written in response to very particular actions taken by the British in the colonies. The first part states that searches and seizures will be reasonable (without defining that). The second part was aimed at preventing general warrants that gave officials the right to search anyone, anyplace, anytime.
It has never been interpreted to mean the government cannot criminalize a particular action. It means the government can't force women to submit to pregnancy tests without probable cause of a crime, not that it can't prohibit a doctor from performing a specific action.
Dagonee Edit: As for the search part, it prohibits a particular government action in particular situations. And the only practical remedy for violations is exclusion of illegally obtained evidence from use in a criminal trial against the person's rights that were violated.
posted
I'm not saying that its necessarily particularly meaningful, just that its definitely a right to privacy of some sort -- what else is protection from unreasonable searches?
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posted
I haven't forgotten it, I'm just wondering if anyone really wants "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" to be judicially interpreted. Sounds very scary to me, especially when you consider that upholding a right for one person often means striking down a related right for someone else.
posted
Dag is right. This amendment aginast unreasonable search and seizure just doesn't apply to abortion or the Supreme Court's recent anti-anti-sodomy law ruling.
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posted
No, I tend to generally trust nine of the greatest legal minds in the country.
And I must assume you're referring to the rights of the impregnating male, as the fetus has never been considered a person legally.
edit to make the implicit explicit: and aren't you advocating a great expansion of rights to those fetuses which would, at least by the reasoning of the supreme court, be greatly infringing the rights of the women involved? IOW, even if you're right, you're right in a very similar way to how the court could be right.
posted
Of course they're not always right. And what is right can change, as the laws and their applications change. But when its a question of more likely to be right, I know who I'm betting on.
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quote:edit to make the implicit explicit: and aren't you advocating a great expansion of rights to those fetuses which would, at least by the reasoning of the supreme court, be greatly infringing the rights of the women involved? IOW, even if you're right, you're right in a very similar way to how the court could be right.
And shouldn't such decisions be made by the branches of government accountable to the people, to the extent it's possible?
The judicial system is partly in place to prevent the tyranny of the majority. The rule of the majority was preventing women from having abortions, which in this case was leading to many deaths and mutilations from "home abortions". There was and is no recognized legal standing for the fetus, and the participation of the husband in the decision was arguably less important than ensuring women would not recourse to doing it themselves. Note that this last point has likely changed, because the decision making role of women in society has greatly expanded since.
As such, the ruling of the Supreme Court was, at least then, acceptable to me, if perhaps not under their reasoning.
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posted
I suppose there's some obvious reason that I'm missing, but why is it necessary to first assume that a certain group has no legal protection, as opposed to presuming all people are included? IE, fetuses, blacks, women, etc., are all included generally under "people" or "citizens" rather than having to each be specified...It'd have saved us a lot of amendments.
posted
For the same reason we don't assume tumors are people, or skin cells are people -- it won't be long before any given skin cell has just as much potential to be human as a fetus that requires medical care to survive -- either one, properly treated, would grow up to be a human. Also, fetuses are not clearly human-like, unlike every other group you name. Not to mention, fetuses are regularly lost partially due to the actions of a mother, for instance, miscarriage -- should every woman who has a miscarriage after strenuous physical activity or similar be prosecuted for criminal negligence? If we afford a fetus full rights as a human, that sort of thing must happen.
No, a fetus is not a person. It may be some other legally protected entity, but at least under our legal tradition it has no inherent protection.
Under our legal tradition, where the fetus is not a person and the woman is, it is definitely acceptable for the supreme court to rule that 1) the fetus is a part of the woman's body and 2) a woman has the right to do what she wills with her body provided it doesn't infringe on the rights of others.
Note that I don't necessarily think the court is particularly consistent in their reasoning -- it would be acceptable for laws to prevent transactions involving many drugs, under this reasonsing, but not the consumption. Of course, that drugs are external to the body weakens the reasoning, so some overriding concern could apply.
None of the laws protecting fetuses at that time gave them inherent legal protection (that I've ever heard of), they were just laws preventing women from doing something with their own bodies.
Now, were there to be a law not forbidding abortion, but giving the fetus a separate legal status which prevented it from being aborted, that would possibly be a way for the legislature to overturn the effect of the ruling. However, it may be necessary to have a Constitutional amendment to create such a status securely.
Of course there are things the courts can't decide. They can't decide anything they are not legally empowered to decide. In this case, perhaps it would have been better for the courts not to make that ruling (at least not to the same degree), but did they not have the power to? I think they did have the power to.
Ultimately, its going to be nine people appointed for life sitting in their offices making weighty decisions about the law. And yes, they're going to be wrong sometimes. But I don't see a good alternative, not at all.
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What I don't see in your philosophy is the set of criteria for deciding which issues should be decided by the courts and which shouldn't. Almost every decision made by goverment can be couched in terms of rights-infrigement. So which types of decisions shouldn't be made by the courts?
And to be clear, I'm not against judicial review. I'm in favor of making sure it doesn't overwhelm the political power of the people.
posted
The supreme court is only supposed to prevent the tyranny of the majority when that majority decision violates the constitution. If they just think the majority is *wrong* (as with your abortion case), then we have traded tyranny of majority to the tyranny of a few judges, which is even worse.
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posted
While its useful to have such a principle, its also important to understand that the only ones who can safely determine that principle are the SC themselves, or the populace through a Constitutional amendment. And its not really feasible to create an acid test, due to the incredible scope of possible convolutions.
As such, while it may be worthwhile to debate if a very particular ruling overstepped the court's bounds, it is only effective to do so if one can make a strong argument that it passes beyond authority they have previously assumed. And even then, the nature of a changing legal landscape is that its borders may change as well.
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quote:While its useful to have such a principle, its also important to understand that the only ones who can safely determine that principle are the SC themselves, or the populace through a Constitutional amendment. And its not really feasible to create an acid test, due to the incredible scope of possible convolutions.
But it behooves anyone who participates in this political process to a) have a set of such principles, b) monitor the court's compliance with those principles, and c) decide when a constitutional amendment might be necessary.
And the principles by which the Court decides to intervene are not, not should they be, inarticulable. We don't have a government based on what somebody feels like doing today.
quote:the only ones who can safely determine that principle are the SC themselves, or the populace through a Constitutional amendment.
The fact that anybody would say this to me is proof that the Supreme Court has overstepped its bounds beyond the checks and balances that the constitution established. Posts: 16551 | Registered: Feb 2003
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Second, were the legislature empowered to restrict the court arbitrarily, the court would almost wholly subordinate to the legislature. That must not be.
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posted
I'd like to point out, since the discussion seems to be a lot of argument about the supreme court, that it's not based on the original documents anymore. Political scientists will tell you that.
The United States is based off of a British common-law structure where laws are broad and hard to interpret, and therefore don't need to be rewritten very often. This is in opposition to the Nepoleonic code law system where the government uses law as a tool for governance. Typically code law legislation is much more specific and cannot be reinterpreted as it is often done in common law systems.
The result is that supreme court rulings create precedents that subsequent cases are then based off of. When there is no precedent, the members of the SC return to the original documents and develop interpretations of the text.
So "unlawful search and siesure" became "right to privacy" at some point (I don't personally know when), and has been such ever since. At the same time "right to bear arms" has become "right to have any weapon the military wouldn't use in war" (to simplify). These instances don't reflect the original meaning of the constitution, but an interpreted one out of tradition.
Whether or not any of you think this applies *now* is another story.
As for same-sex marriages, it's not the end of the world, guys. Lighten up. On a legal level, it makes homosexual couples better-able to look after one another. In Vermont (my home state w00t), civil unions were the worst thing ever, according to some Vermonters. If you've ever seen a "Take Back Vermont" sign, those aren't advertisements for Vermont commemorative duck decoys, they're part of a failed anti-Civil Unions activist campaign. It turns out, Vermont was not consumed with crazy gay people (which were just teeming outside our borders... really!), and Vermont really didn't change all that much.
Maybe because I'm wholly unreligious, but I really don't understand how calling a Civil Union a Marriage (or vice versa) makes any difference. They're quantitatively the same.
PSI beleives that marriage is for a man and a woman, but it seems to be an unimportant distinction, at least legally. Religiously or subjectively, yes, it does make a difference. But legally if right x and right y are granted to both heterosexual and homosexual couples, why shouldn't the package for both be called the same. I call my Linux-packing computer a computer, and I call my Windows-running computer a computer, and I call my friend's iBook a computer. They're all different, but not quantitatively enough for one not to be a computer.
Just my take, anyway.
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quote:but I really don't understand how calling a Civil Union a Marriage (or vice versa) makes any difference.
but it does make a difference. human beings think in symbolic terms. a label is a symbol. equating symbols (labels) is both a form of externally validated acceptance to one community and an affront to externally validated specialness to another.
true. symbolic thinking has it's limitations and history shows this to be a rather deep tragedy of the human condition.
quote: were the legislature empowered to restrict the court arbitrarily, the court would almost wholly subordinate to the legislature. That must not be.
Right now, the Supreme Court has the power to restrict the legislature arbitrarily. This must not be either.
If the legislature passes a law that the court doesn't like, they just call it unconstitutional, whether it is or not.
Unfortunately, I cannot think of a structure that would a) prevent this abuse and b) not completely emasculate the court.
The only solution I can think of is if the judges *choose* to not grab more power than they should. But of course, if we could trust people in power to do what's right, any government would work just fine.
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posted
We've been talking about several examples. Roe vs. Wade is one that was mentioned in this thread. Brown vs. Board of Education is another one mentioned in the Victory for Romanticism thread.
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several examples don't constitute a "trend" or phenomena (-> driving toward a simplification), particularly when the several examples go this way and that across the political spectrum.
quote: We've been talking about several examples. Roe vs. Wade is one that was mentioned in this thread. Brown vs. Board of Education is another one mentioned in the Victory for Romanticism thread.
You think that the court shouldn't have integrated the schools? You're kidding, right?
I'm not sure anyone here has argued for pure originalism. And the 4th amendment right to privacy is unrelated to the the right to privacy used as a basis in Roe.
Originalism, textualism, structuralism, representational reinforcement, and core value analysis are just some of the many methods used to evaluate the Constitution.
All I've been advocating is that the Supreme Court must have some limits in the extent of its overruling of legislation. An no constitutional theory disagrees with this.
The argument has always been where the limit should be.
posted
mph, there IS a check on the judicial branch... The executive and legislative can ignore the decision. The judicial branch has no means to enforce its rulings. So if it gets too "out there", people will treat it with irrelevancy.
posted
Which is another reason for the Court to limit areas it intercedes as much as possible: each use of judicial review costs the court a little bit of "juice." It needs to make sure it maintains enough to have credibility when it makes a ruling like Brown.
posted
Yes, the important part has been pointed out. The court is checked by their lack of control. Stuff they say to happen only happens if the legislative and executive parts of government go along. They've been ignored before, including when they were right (Andrew Jackson and the Trail of Tears, anyone?).
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posted
Oh, and I'm not saying nobody else should come up with definitions on limits, or that it shouldn't be articulated. I'm saying there shouldn't be 1) an acid test, which is probably what would result from a legislative curb, if such a thing were attempted and 2) that the only people who can define such limits in any manner that preserve's the court's ability to curb the legislative and executive branches at all are either the people as a whole in a Constitutional amendment, or the court itself.
Now, I'd be interesting in hearing Dag's discourse on this snippet:
quote: In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Particularly regarding the bit about exceptions and regulations.
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quote: You think that the court shouldn't have integrated the schools? You're kidding, right?
I never said what they did was *wrong*. I just said that it's constitutional foundation is pretty shaky.
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posted
fugu, what you are saying is starting to sink in. While I thought I disagreed with you in just about every post in this thread, that last post of yours makes a lot of sense to me. Posts: 16551 | Registered: Feb 2003
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posted
Dag: that doesnt make sense- everytime the court makes a decision it loses credibility? The Supreme Court makes its decisions based on its interpretation of the constituion- the court knows the constitution better than anybody else, so lets leave it up to them. And the part about losing credibility--on what basis, that groups might disagree with the ruling? That is why the court is independent from the majority-because people are stupid, generally speaking. Now understand my meaning, opinions are not stupid, but some less backed by fact or reasonable information than others.
The Supreme court is never wrong per se, but interpretations change from time to time with the social order. The best example is the treatment of African Americans and the symbolic relevance to this discussion. BTW-MPH, there is no mention of seperate but equal in the constitution, but there is a lot of stuff about equality and freedom from oppresion by government--I would like to hear how the Brown v Board ruling has "Shaky" constitutional foundation.
It should be pretty simple- the constitution promotes equality for all and freedom from oppresion in any form. So why not grant marriage for gay couples?
BTW-fugu, love the explanation of the fetus rights
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posted
Brown is thought by many to stand on "shaky" Constitutional ground, because under the 9th and 10th ammedment it is difficult to argue that the government could impose regulations upon our local school systems, since (especially at that time... I believe there wasn't even a Department of Education yet) the Constitution expressly grants the rights of regulation to the people and to the States.
Some call this 'legislating from the bench', and in a way they are correct. Of course, ALL BENCH DECISIONS ARE LEGISLATIVE IN NATURE so this cannot really be helped.
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posted
Adeimantus, go check out the other thread where I said Brown vs. Board of Education was discussed.
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quote:fugu13 said: Now, I'd be interesting in hearing Dag's discourse on this snippet: [quote omitted]
Particularly regarding the bit about exceptions and regulations.
I’ll have to get back to this – there’s some interesting case law on the subject.
That clause was the basis of the underlying decision in Marbury v. Madison, by the way.
quote:Adeimantus Dag: that doesnt make sense- everytime the court makes a decision it loses credibility? The Supreme Court makes its decisions based on its interpretation of the constituion- the court knows the constitution better than anybody else, so lets leave it up to them. And the part about losing credibility--on what basis, that groups might disagree with the ruling? That is why the court is independent from the majority-because people are stupid, generally speaking. Now understand my meaning, opinions are not stupid, but some less backed by fact or reasonable information than others.
I never said it each decision cost it credibility. I said each use of judicial review (not every decision), meaning declaring an act of another branch unconstitutional, cost it “juice,” which was a particular choice of words to connote some imprecise combination of reputation, credibility, perceived integrity, and willingness of the other branches to follow its decisions. This is not me saying this, this is a common factor cited in both supreme court decisions and constitutional scholarly work. I’ll look some up if I get a chance and post it.
quote:Adeimantus The Supreme court is never wrong per se, but interpretations change from time to time with the social order. The best example is the treatment of African Americans and the symbolic relevance to this discussion. BTW-MPH, there is no mention of seperate but equal in the constitution, but there is a lot of stuff about equality and freedom from oppresion by government--I would like to hear how the Brown v Board ruling has "Shaky" constitutional foundation.
Read my post above on the subject. Again, I don’t think the decision was wrong. The reasoning behind it was shaky, and stronger reasoning with better basis in precedent was not used, probably for political reasons.
It should be pretty simple- the constitution promotes equality for all and freedom from oppresion in any form. So why not grant marriage for gay couples?[/quote]
And the Constitution does NOT protect from oppression in any form. Hyperbole doesn’t advance discussions such as this one.
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