[Mulderator]

Originally Posted by Rollin' Rog

I'm not aware of anyone being convicted of a homicide here for death of a true fetus... but if they were, that certainly would be a contradiction.

Whaaaaaaaaaat? Did you sleep through the Scott Peterson trial?

[bassetman]

Originally Posted by Mulder

I think what you mean is that states cannot offer less protection than what is afforded by the Constitution but can offer more--which they often do. As an example, here in California, gays are considered a protected class that cannot be discriminated against while the same is not true under federal law. But obviously you have to first decide what protections are afforded by the Constitution. The problem is that people, primarily liberals, want to turn the Constitution into something its not, and that is a device for social justice. The Constitution was never designed nor should it be used to provide for social and economic equality. In fact, there was no provision to tax the income of citizens in the Consitution, which is the main vehicle liberals use in attempts to redistribute wealth. In fact, I have no doubt the Constitution would never have been ratified by the states if they saw how it was going to turn out in terms of the scope of the federal government.

Thanks for pointing out the distinction!

BTW in an example from here, WI added an amendment to our constitution clearly stating we have a right to keep and bare arms to counter the ambiguity in the US one.

[bassetman]

Originally Posted by Mulder

Whaaaaaaaaaat? Did you sleep through the Scott Peterson trial?

I couldn't think of that name!

[stormylin]

Originally Posted by Mulder

I think Democrats and Republicans alike would be shocked to learn that the Constitution does not give the courts the right to "interpret" federal law. Under the Constitution as I know it, its the court's job to interpret all laws, federal and state.

Democrats and Republicans alike would get a lot of rude awakenings if they one day woke up and had to be held accountable to uphold the Constitution strictly as it is written or be thrown out of office. Just because they break federal law everyday, doesn't mean they have the authority to do so under the Constitution. And No, the Constitution does not give any court the authority to Change federal law without doing so by Amendment. Sure the courts do it all the time, they use this lame word interpretation- and through this word, the courts (and legislators) claim it is necessary to interpret the Constitution because it was written 200+ years ago, and they change it all the time. Of course, that is utter nonsense. Just because the Dems and Rep do it all the time, and just because the courts change the Constitution all the time 'by interpreting' it, doesn't mean the Constitution ever gave them the authority to do this. Clearly it didn't. Again, that is what Amendments are for!!

[Mulderator]

Originally Posted by stormylin

Democrats and Republicans alike would get a lot of rude awakenings if they one day woke up and had to be held accountable to uphold the Constitution strictly as it is written or be thrown out of office. Just because they break federal law everyday, doesn't mean they have the authority to do so under the Constitution. And No, the Constitution does not give any court the authority to Change federal law without doing so by Amendment. Sure the courts do it all the time, they use this lame word interpretation- and through this word, the courts (and legislators) claim it is necessary to interpret the Constitution because it was written 200+ years ago, and they change it all the time. Of course, that is utter nonsense. Just because the Dems and Rep do it all the time, and just because the courts change the Constitution all the time 'by interpreting' it, doesn't mean the Constitution ever gave them the authority to do this. Clearly it didn't. Again, that is what Amendments are for!!

Well, there is more to what the courts do than to interpret the Constitution. In fact, far more often they are interpreting laws for their intent and application that has nothing to do with the Constitution. But the Constutution is far too general to apply it with no interpretation at all--that would be an exercise in futility. I agree that some courts and judges go too far--finding rights that don't exist in the plain text, but interpretation is necessary to some extent because different people have different view of what different phrases mean. As an example, people here often miscontrue the 4th Amendment as requiring a warrant to conduct a search and that's not what it says at all.

How do you propose applying law without interpreting a meaning or intent?

[Mulderator]

Originally Posted by bassetman

I couldn't think of that name!

Its actually pretty easy to get around the "person" issue. You don't have to determine that a fetus is a "person" under the Constitution, you simply make the penalty for killing a fetus the same as for killing a person. The problem you run into is the running afoul of the "cruel and unusual" punishment portions of the Constitution, but I think common sense would get you by that--certainly killing a fetus with intent to do so should be just as heinous as killing a 1 day old baby.

The other problem is using that law to prosecute physicians that perform abortions, but again its easy enough to differentiate that.

But here again is where common sense is thrown to the wind. The liberals try and argue that there should be no "homicide" conviction for killing a fetus because they are worried the pro-lifers will use that to then try and argue that killing of fetuses in any manner is "homicide" (i.e., abortion) and from a common sense point of view, its fairly easy to keep them distinguished. But the radicals on both sides with try and use this as a wedge for their position.

[linskyjack]

This is an excerpt from Wikipedia---on the battle between the Originalists and the Living Consitution Folk:


Pros and cons


Arguments favoring the "Living Constitution Theory"

* American society has changed since the Constitution's ratification over two hundred years ago. In order for the Constitution to remain relevant and vital, it must grow and evolve with this society, "otherwise it will become brittle, and snap."

* The requirement that an amendment be ratified by the legislatures of three quarters of the several states inhibits the Constitution from growing and evolving with society.

* Because societal consensus sometimes exceeds that of the Legislature, it is possible for an amendment with broad support to fail.

* Alteration of the Constitution should not require broad cross-party support.

* Supporters of the Living Constitution say that perhaps the most contested clause is the explicit promise of "due process." Opponents of the Living Constitution seem to say they want to use the amendment process to do what judges do, that is decide what is due process. That would require amendments totaling thousands of pages dealing with all the nuances.

* Supporters point out there would have to be hundreds or thousands of constitutional amendments to cover thousands of different things that did not exist in 1787--like the Air Force, or the automobile or the internet or gay rights or partial birth abortions. Every year there would be a new batch of constitutional amendments to take account of the changes that happen so fast. The voting on all these amendments would involve multimillion dollar media campaigns financed by special interests. People with very little understanding of the law would make the decisions based on the last TV ad they saw (as happens in California initiative elections). Or the people can turn the job of handling the living Constitution over to experts who listen to the best legal talent and themselves are thoroughly examined and approved by the democratic process--the justices of the Supreme Court.



Arguments opposing "Living Constitution Theory"

* The Constitution recognises that society's needs and standards evolve (or at least change) over time, and that the Constitution may therefore need to grow, evolve or at least change in the due course of time. It therefore provides a mechanism for its amendment - but that mechanism resides in Article V, not Article III; the Supreme Court, by re-interpreting new clauses into the Constitution, takes ultra vires action, effectively short-circuiting the amendment process and encroaching on the rights the Congress and State legislatures to propose amendments, and the sovereignty of the people to ratify the same.
* If the Constitution should be interpreted in light of "the evolving standards of decency", why should the Supreme Court - nine unelected lawyers appointed to lifetime terms - have the final say over its interpretation? Is not the Congress, which faces election every two to six years, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgements?
* England, whose constitution the founders were intimately familiar with, having recently escaped from living under it, is "flexible", because it is unwritten; the British Constitution is thus "whatever Parliament says the Constitution says". The Founders rejected this approach, and instead opted for a written constitution which could only be amended by consent of the people - not by fiat of one of the branches of government.
* If the Constitution means whatever it is decreed to mean by a judge, then "The Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." -Thomas Jefferson)
* The Living Constitution asks the wrong question. Instead of asking "what does the law say to this case?" it asks, "What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?" [1]
* The Living Constitution approach provides little or no check against judges gaining unfettered discretion to inject their personal values into constitutional jurisprudence. Upon hearing that Nixon had won, New Yorker film critic Pauline Kael declared, "I don't know how Richard Nixon could have won, I don't know anybody who voted for him"; there is a tendency inherent in humans to assume that our views are mainstream and reasonable, and thus - absent any clear guidelines to prevent it - there is a danger that a Judge may end up interposing their standard of decency, not society's. The Originalist Judge frequently renders verdicts which they don't like or agree with (see, e.g., Texas v. Johnson); the Living Constitution Judge - because they believes that "legal" and "right" are not distinguishable terms - never rules against their own preferences.
* How is the Court to determine what the standards of decency are at any given time? What should be the threshold or standard against which a statue is judged.
* The Living Constitution cannot answer the hugely important question: what happens if society's view is determined by the court to be diametrically opposed to an explicit constitutional guarantee? Since the Court cannot amend the Constitution, the Living Constitutionalist is faced with a dilemma: which should prevail - the text, or the Court's understanding of the standard of decency? Can the Supreme Court void not just a law, but a clause of the Constitution?
* The Living Constitution would render the meaning of the Constitution unknowable and thus arbitrary and capricious, the precise opposite of the Framers' intent in drafting a written constitution which provides checks against capricious and arbitrary government. "Is the death penalty unconstitutional? Not yet, but check back again in six months, and we'll see what society thinks".
* The Living Constitution interjects the Supreme Court into the moral and policymaking arenas, where it has no business being. The job of the Supreme Court is to determine what the law says, not what it ought to say - that job being reserved to the Congress. The job of the Supreme Court is to determine whether a law is or is not Constitutional, not whether it is or is not a good idea. Again, the Constitution reserves those tasks to the legislative and executive branches.
* The Living Constitution is at variance with the historical practises of American jurisprudence. The due process clause of the Fourteenth Amendment existed in 1870 and 1920, and what could be a great violation of equal protection than the denial of suffrage on the grounds of race or gender? The due process clause was never previously understood to be a "blank check" guaranteeing substantive rights, but rather a check on arbitrary or capricious government (a person can be constitutionally deprived of life, liberty and property, but only after due process of law has been followed), and hence the need for the Fifteenth and Sixteenth Amendments.
* If the Constitution is not to have a fixed meaning, and can thus be interpreted as a given Judge or Justice fancies, then every Judicial confirmation that reaches the Senate will become a battleground over the personal views of that Judge. Apropos, see also: Robert Bork, Janice Rogers Brown, Priscilla Owens, Nuclear Option.

[bassetman]

Originally Posted by Mulder

Its actually pretty easy to get around the "person" issue. You don't have to determine that a fetus is a "person" under the Constitution, you simply make the penalty for killing a fetus the same as for killing a person. The problem you run into is the running afoul of the "cruel and unusual" punishment portions of the Constitution, but I think common sense would get you by that--certainly killing a fetus with intent to do so should be just as heinous as killing a 1 day old baby.

The other problem is using that law to prosecute physicians that perform abortions, but again its easy enough to differentiate that.

But here again is where common sense is thrown to the wind. The liberals try and argue that there should be no "homicide" conviction for killing a fetus because they are worried the pro-lifers will use that to then try and argue that killing of fetuses in any manner is "homicide" (i.e., abortion) and from a common sense point of view, its fairly easy to keep them distinguished. But the radicals on both sides with try and use this as a wedge for their position.

I heard that in 1st year of law school it is what would a fair and reasonable person do? (or close)

And by the third year if you don't have 25 reasons why that is not correct, you haven't learned!

[plschwartz]

Rog:

In the Meirs debate reference was made not only to Roe but also to Griswold upon which it is based. http://caselaw.lp.findlaw.com/script...=381&invol=479
I am especially taken with the concurring opinion of Goldberg et al. where there is in fact a discussion of the rights of privacy, including a quote from Madison during the debate on the ninth amendment regarding the amendment as more then a enermeration of righrs
The majority also discusses the penumbra of the amendments.

It seems to me that many who believe that Griswold is "judicial activism" rather believing in the letter of the law also are those who would believe in the "letter of the law" in the Bible

So to me anyway the discussion of more interest then Roe is Griswold

[plschwartz]

I see that Justice Linsky and I concur

[Mulderator]

Originally Posted by plschwartz

Rog:

In the Meirs debate reference was made not only to Roe but also to Griswold upon which it is based. http://caselaw.lp.findlaw.com/script...=381&invol=479
I am especially taken with the concurring opinion of Goldberg et al. where there is in fact a discussion of the rights of privacy, including a quote from Madison during the debate on the ninth amendment regarding the amendment as more then a enermeration of righrs
The majority also discusses the penumbra of the amendments.

It seems to me that many who believe that Griswold is "judicial activism" rather believing in the letter of the law also are those who would believe in the "letter of the law" in the Bible

So to me anyway the discussion of more interest then Roe is Griswold

Schwartzy--I am surprised at your knowledge of Constututional Law. You are in fact correct that Griswold is the more interesting decision and the lynchpin upon which Roe used to expand the concept of privacy. But you don't hear much about Griswold outside legal circles like you do on Roe v. Wade, for obvious reasons. I agree with the result in both of the cases although the reasoning used to get their is tenuous at best.

[linskyjack]

Mulder, how can you agree with a decision that really goes against your philosophy or orignialism? Lets say that we could turn the clock back to before Griswold, and some state passed a law that was very liberal vis a vis abortion. The law is attacked by pro-lifers and it ends up in the Supreme Court. The Court is conservative and strikes it down, based on the issue not being addressed in the Constitution and/or the court decides that based on the preponderence of evidence (because this is open to debate), a fetus is a life? Can you imagine what chaos would ensue?

[bassetman]

Originally Posted by Mulder

Schwartzy--I am surprised at your knowledge of Constututional Law. You are in fact correct that Griswold is the more interesting decision and the lynchpin upon which Roe used to expand the concept of privacy. But you don't hear much about Griswold outside legal circles like you do on Roe v. Wade, for obvious reasons. I agree with the result in both of the cases although the reasoning used to get their is tenuous at best.

[Mulderator]

Originally Posted by linskyjack

Mulder, how can you agree with a decision that really goes against your philosophy or orignialism?

I am not a strict constructionist--I don't go as far as Scalia and Rhenquist go. I believe though, in a high degree of deference.

But what's wrong with agreeing with a decision even though it is not legally correct as long as I am not the judge? I've won motions I thought I should probably lose on the law, but that doesn't mean I don't like the result. Griswold is actually grounded much better in Constitutional Law and accepted much much more widely than is Roe. There are watershed cases like Brown v. Board, Griswold, Roe v. Wade where the issues are so significant that the court has great difficulty ignoring it. If this happens once in a great while, its fine.

But imagine this. Imagine 9 liberals on the court and they decide that the Constitution's "penumbras" mean that a person has a right to be economically free so they decide that wealth cannot be concentrated in a few individuals and come up with a scheme to re-distribute the wealth. That hypothetical is not all that far from Roe v. Wade albeit a lot more complicated to orchestrate. But the basic premise is the same--the court finds a right guaranteed by the Constitution that's not actually written anyhwere in it and then must do something to make sure the right is recognized by society.

[bassetman]

Originally Posted by Mulder

I am not a strict constructionist--I don't go as far as Scalia and Rhenquist go. I believe though, in a high degree of deference.

But what's wrong with agreeing with a decision even though it is not legally correct as long as I am not the judge? I've won motions I thought I should probably lose on the law, but that doesn't mean I don't like the result. Griswold is actually grounded much better in Constitutional Law and accepted much much more widely than is Roe. There are watershed cases like Brown v. Board, Griswold, Roe v. Wade where the issues are so significant that the court has great difficulty ignoring it. If this happens once in a great while, its fine.

But imagine this. Imagine 9 liberals on the court and they decide that the Constitution's "penumbras" mean that a person has a right to be economically free so they decide that wealth cannot be concentrated in a few individuals and come up with a scheme to re-distribute the wealth. That hypothetical is not all that far from Roe v. Wade albeit a lot more complicated to orchestrate. But the basic premise is the same--the court finds a right guaranteed by the Constitution that's not actually written anyhwere in it and then must do something to make sure the right is recognized by society.

You mean they could put an end to Plutocracy?