The Left Needs to Take Back the Constitution

[eman623]

The death penalty is a matter of degree of punishment, and the distinction in the abortion debate is between whether it's a crime or not at all.

I think that's a distinction without a difference. But I can make the same point with marijuana possession laws. In some states it's been entirely decriminalized, while in other states it ranges from misdemeanor to felony. And at the federal level, it remains a felony to possess any amount of cannabis.

 

[Jredbaron96]

I think that's a distinction without a difference. But I can make the same point with marijuana possession laws. In some states it's been entirely decriminalized, while in other states it ranges from misdemeanor to felony. And at the federal level, it remains a felony to possess any amount of cannabis.

Marijuana does not carry the same weight as questions of life and death.

 

[NatMorton]

It is no comfort to know that you will accept any problematic ruling if it accomplished an end goal.

I don't, and that's why I have objected to Roe for so long.

Because if you were really as concerned about constitutional adherence as you claim you would have raised alarm at the Court deciding they can carve out rights under whatever circumstances they deem unique.

But predictability, it's not.

I believe you seen me register objection to the new bill that proposes a uniform, and more conservative national abortion standard. And you've never seen me advocate for any national abortion standard.

So, if I oppose the left's Roe standard due to lack of authority, and I oppose these conservative efforts to impose their preference also because of a lack of authority, isn't that evidence that I'm put "constitutional adherence" above politics? And if you think not, what would convince you? Please be specific.

 

[Jredbaron96]

I don't, and that's why I have objected to Roe for so long.

So, if I oppose the left's Roe standard due to lack of authority, and I oppose these conservative efforts to impose their preference also because of a lack of authority, isn't that evidence that I'm put "constitutional adherence" above politics? And if you think not, what would convince you? Please be specific.

If we want to get down to brass tacks,

While I'm sure you enjoyed the Court taking several pages to criticize Roe and Casey, in the end the ruling did not say "the Federal Government cannot regulate abortion" nor did it say "only the states can pass laws regarding abortion".
Roe v Wade was overturned with the argument that because abortion was "unique" because it "involved life", the Court could distinguish it from the right to privacy without undermining the latter. The Court did not say "abortion should be left to the states", but instead left it to a generalized "elected officials", leaving the door open to a nation-wide abortion ban that the Court could uphold as constitutional under their interpretation.

The part that should be alarming to anyone interested in constitutional law is where the Court decided if it finds a right or concept "unique" enough, they can carve it out of its existing protections or associates and treat it independently. The Court has, either intentionally or unintentionally, set the precedent that it can canvass a right without regards to precedent if it finds it "unique" enough.

Although the majority opinion specifically spells out that it should be seen as a challenge to any other rights protected by the right to privacy, Thomas' own dissent pokes a blatant hole in that claim; the standard that the Court has set is that it can separate rights from the legal principles that protect them if the Court decides they are unique enough. "Involves life" can just as easily be transplanted to a debate about contraception or IVF, or even adoption.

This has become the alarming standard of the Roberts Court since it began its right wing tilt; reliance on vague and unspecified standards that do not assist future Courts or justices with setting a consistent pattern of judicial interpretation. This was the same issue in West Virginia vs EPA, where the Court lambasted the EPA and Congress for not specifying the rights and powers of a federal agency...while failing to explain what they considered sufficiently specific instructions. (Ironically, in a situation where application of originalism and textualism would have actually been of use, the Court neglected to utilize either)

The Court has instead decided that when striking down provisions or laws that it does not like, it is not required to establish what standards it expects from future legislation or rulings outside of vague generalities that leave themselves open to wide array of interpretation. Conservatives like to claim that the Roberts Court has rescinded the excess of liberal rulings, but what the Roberts Court has actually done is leave the gate open to even more encompassing judicial overreach.

 

[NatMorton]

If we want to get down to brass tacks,

While I'm sure you enjoyed the Court taking several pages to criticize Roe and Casey, in the end the ruling did not say "the Federal Government cannot regulate abortion" nor did it say "only the states can pass laws regarding abortion".
Roe v Wade was overturned with the argument that because abortion was "unique" because it "involved life", the Court could distinguish it from the right to privacy without undermining the latter. The Court did not say "abortion should be left to the states", but instead left it to a generalized "elected officials", leaving the door open to a nation-wide abortion ban that the Court could uphold as constitutional under their interpretation.

The part that should be alarming to anyone interested in constitutional law is where the Court decided if it finds a right or concept "unique" enough, they can carve it out of its existing protections or associates and treat it independently. The Court has, either intentionally or unintentionally, set the precedent that it can canvass a right without regards to precedent if it finds it "unique" enough.

Although the majority opinion specifically spells out that it should be seen as a challenge to any other rights protected by the right to privacy, Thomas' own dissent pokes a blatant hole in that claim; the standard that the Court has set is that it can separate rights from the legal principles that protect them if the Court decides they are unique enough. "Involves life" can just as easily be transplanted to a debate about contraception or IVF, or even adoption.

This has become the alarming standard of the Roberts Court since it began its right wing tilt; reliance on vague and unspecified standards that do not assist future Courts or justices with setting a consistent pattern of judicial interpretation. This was the same issue in West Virginia vs EPA, where the Court lambasted the EPA and Congress for not specifying the rights and powers of a federal agency...while failing to explain what they considered sufficiently specific instructions. (Ironically, in a situation where application of originalism and textualism would have actually been of use, the Court neglected to utilize either)

The Court has instead decided that when striking down provisions or laws that it does not like, it is not required to establish what standards it expects from future legislation or rulings outside of vague generalities that leave themselves open to wide array of interpretation. Conservatives like to claim that the Roberts Court has rescinded the excess of liberal rulings, but what the Roberts Court has actually done is leave the gate open to even more encompassing judicial overreach.

You didn't answer my question.

 

[Jredbaron96]

You didn't answer my question.

I didn't think I'd need to spell it out.

Your claim that you put constitutional adherence of politics is directly contradicted by the fact that you endorse rulings that directly run contrary to the constitutional adherence and other legal principles you claim to care so much about it.

If you did, you'd be complaining about the Robert's Court continued expansion of judicial overview and its alarming trend of bucking precedent and inconsistent application of the legal principles it proclaims (and you as well) to stand by.

 

[NatMorton]

I didn't think I'd need to spell it out.

Your claim that you put constitutional adherence of politics is directly contradicted by the fact that you endorse rulings that directly run contrary to the constitutional adherence and other legal principles you claim to care so much about it.

You know I don't agree with that, so you can stop pushing that rubbish. Roe was among the worst cases of judicial overreach in the court's history.

If you did, you'd be complaining about the Robert's Court continued expansion of judicial overview and its alarming trend of bucking precedent and inconsistent application of the legal principles it proclaims (and you as well) to stand by.

Hardly. Dobbs resulted in the court pulling back from the abortion policy debate whether you accept that reality or not.

 

[Jredbaron96]

You know I don't agree with that, so you can stop pushing that rubbish.

Yet you've endorsed Dobbs' alarming standard of the Court being able to strip away aspects of certain rights if the Court decides its "unique".

Imagine if the court tomorrow rules that semi-automatic rifles weren't protected by the 2nd Amendment because they're unique because they didn't exist in 1789.

Hardly. Dobbs resulted in the court pulling back from the abortion policy debate whether you accept that reality or not.

Not only is this not even a response to whag I said, it's clear you don't even grasp what the actual ruling of Dobbs means.

 

[NatMorton]

Yet you've endorsed Dobbs' alarming standard of the Court being able to strip away aspects of certain rights if the Court decides its "unique".

Dobbs did not strip away a Constitutionally protected right. It stripped away a court-fabricated right that should have never been codified into case law.

Imagine if the court tomorrow rules that semi-automatic rifles weren't protected by the 2nd Amendment because they're unique because they didn't exist in 1789.

Depending on their reasoning, I might agree with them.

Not only is this not even a response to whag I said, it's clear you don't even grasp what the actual ruling of Dobbs means.

I do. You don't.

 

[Jredbaron96]

Dobbs did not strip away a Constitutionally protected right. It stripped away a court-fabricated right that should have never been codified into case law.

Dobbs claimed that abortion can't fall under the right to privacy because it involves "life". Is that a constitutional argument?

Depending their reasoning, I might agree with them.

Like what?

I do. You don't.

You demonstratably dont. It's why you keep mischaracterizing their arguements.

 

[NatMorton]

Dobbs claimed that abortion can't fall under the right to privacy because it involves "life". Is that a constitutional argument?

No, that's more my argument than Dobbs's. The majority asserted there is no right to abortion in the Constitution and no implied right to abortion "deeply rooted in [our] history and tradition." Whether my argument about a legal definition for human life being a state matter can be inferred from there's is debatable.

Like what?

Like an argument asserting a reasonable application of "well regulated" justifies banning weapons that can kill scores of people at a time.

You demonstratably dont. It's why you keep mischaracterizing their arguements.

I don't. In fact, see above, you're the one misquoting Dobbs.

 

[Jredbaron96]

No, that's more my argument than Dobbs's. The majority asserted there is no right to abortion in the Constitution and no implied right to abortion "deeply rooted in [our] history and tradition."

The Court reached that conclusion by carving out abortion from falling under the right to privacy, which they explicitly spelled out they thought was "unique" because it "involved life".

Like an argument asserting a reasonable application of "well regulated" justifies banning weapons that can kill scores of people at a time.

Do you think one has not been made before?

In fact, see above, you're the one misquoting Dobbs.

You are, for whatever reason, choosing to ignore the part of Dobbs I explicitly pointed out as questionable legal standard, I'm guessing because you don't have an explanation for it yet.

 

[NatMorton]

The Court reached that conclusion by carving out abortion from falling under the right to privacy, which they explicitly spelled out they thought was "unique" because it "involved life".

Cite, please.

Do you think one has not been made before?

By SCOTUS, no, I don't think so.

You are, for whatever reason, choosing to ignore the part of Dobbs I explicitly pointed out as questionable legal standard, I'm guessing because you don't have an explanation for it yet.

Again, cite, please.

 

[fmw]

The Left Needs to Take Back the Constitution​

Waste of time. They just ignore it.

 

[Jredbaron96]

Cite, please.

"What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abor￾tion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not sup￾port the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way."

The Majority claims that abortion is unique and special, and frames it as a "critical moral question".

Contraception, same sex marriage, anti-sodomy laws' and interracial marriage were all at one point or another, a critical moral question. After all, every justification the Majority Cites just as equally to contraceptives, which were likewise frequently banned and considered a moral issue, yet the Majority insists its different because they say so.

The standard set by the Court is that they can establish what they consider a "unique" or "critical moral issue" of their own volition, and then rule accordingly.

Thomas wasn't wrong when he argued that this decision could prompt them to revisit those previous cases. The logic applies the same.

By SCOTUS, no, I don't think so.

I'm going to drop this target so this doesn't spiral into a gun control debate.

 

[eman623]

Marijuana does not carry the same weight as questions of life and death.

But the Death Penalty does and you said that didn't count. And according to the radical pro-choice crowd, abortion doesn't carry any life or death issues since they say the fetus isn't legally alive.

I'll try one more time. Assisted Suicide. Perfectly legal in some places, a felony in others. Literally a life and death issue. I think it checks all the boxes.

Should THAT be left up each state to decide, or should there be a national law allowing it - or forbidding it - everywhere in the US? Why or why not?

 

[Cordelier]

No, that's more my argument than Dobbs's. The majority asserted there is no right to abortion in the Constitution and no implied right to abortion "deeply rooted in [our] history and tradition." Whether my argument about a legal definition for human life being a state matter can be inferred from there's is debatable.



Like an argument asserting a reasonable application of "well regulated" justifies banning weapons that can kill scores of people at a time.


I don't. In fact, see above, you're the one misquoting Dobbs.

That's a disingenuous argument, though. Abortion is one aspect of the right privacy.... would you argue against the fact that the right to privacy is "deeply rooted in [our] history and tradition"?

 

[NatMorton]

That's a disingenuous argument, though. Abortion is one aspect of the right privacy.... would you argue against the fact that the right to privacy is "deeply rooted in [our] history and tradition"?

Privacy certainly is. Abortion is certainly not. Prior to Roe, it was illegal throughout much of the country.

 

[Cordelier]

Privacy certainly is. Abortion is certainly not. Prior to Roe, it was illegal throughout much of the country.

I understand that... and prior to Brown, segregation was legal throughout much of the country. That's not the point - the point is the soundness of the legal reasoning the Court uses to come to it's decisions.

We've got a right to privacy recognized in Griswold - we both recognize that. And that gives people a right to make decisions with regard to their own bodies. If they want to use birth control, they have a right to do so, despite the fact that there is no mention of a right to birth control in our Constitution or the fact that birth control isn't deeply rooted in our history and traditions.

So why are women allowed to use birth control but not to have abortions? What's the difference there? Why aren't they both protected under the umbrella of privacy?

 

[Jredbaron96]

But the Death Penalty does and you said that didn't count

Do we execute people for smoking weed?

. And according to the radical pro-choice crowd, abortion doesn't carry any life or death issues since they say the fetus isn't legally alive.

If the only voice in the abortion debate was the prolife crowd we wouldn't be having this debate.

I'll try one more time. Assisted Suicide. Perfectly legal in some places, a felony in others. Literally a life and death issue. I think it checks all the boxes.

Should THAT be left up each state to decide, or should there be a national law allowing it - or forbidding it - everywhere in the US? Why or why not?

It should be a federal decision.

 

[eman623]

It [assisted suicide] should be a federal decision.

Okay, thanks for the honest opinion. I'll give you snaps for consistency.

I don't agree with it and I'm perfectly fine with each state deciding internal matters for themselves - even ones of life and death, even if they reach 180 degree different conclusions. But I think I understand the other side's POV now.

 

[aociswundumho]

Do we execute people for smoking weed?

No, but the federal government puts people in prison for life for the crime of illegal gardening.

I consider life in prison to be very close to the death penalty punishment-wise.

It should be a federal decision.

Yes, in order to make it where there's nowhere to run.

 

[Jredbaron96]

I don't agree with it and I'm perfectly fine with each state deciding internal matters for themselves - even ones of life and death, even if they reach 180 degree different conclusions.

I'm not. History is littered with states that tore themselves apart due to such stark legal differences.

 

[NatMorton]

"What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abor￾tion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not sup￾port the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way."

The Majority claims that abortion is unique and special, and frames it as a "critical moral question".

Contraception, same sex marriage, anti-sodomy laws' and interracial marriage were all at one point or another, a critical moral question. After all, every justification the Majority Cites just as equally to contraceptives, which were likewise frequently banned and considered a moral issue, yet the Majority insists its different because they say so.

The standard set by the Court is that they can establish what they consider a "unique" or "critical moral issue" of their own volition, and then rule accordingly.

Thomas wasn't wrong when he argued that this decision could prompt them to revisit those previous cases. The logic applies the same.



I'm going to drop this target so this doesn't spiral into a gun control debate.

I stand corrected. Dobbs does make a more direct reference to my argument than I recalled.

It is a longstanding part of our legal history that even Constitutional rights can be impinged if in the exercise of that right another is harmed. It's the reason why slander, libel, and human sacrifice are not protected under the First Amendment.

There's nothing new or different about a moral issue of this magnitude justifying a state from overriding a Constitutional right. So why do you object to it when it comes to abortion vs. a state-sanctioned fetal right to life?

 

[Cordelier]

I stand corrected. Dobbs does make a more direct reference to my argument than I recalled.

It is a longstanding part of our legal history that even Constitutional rights can be impinged if in the exercise of that right another is harmed. It's the reason why slander, libel, and human sacrifice are not protected under the First Amendment.

There's nothing new or different about a moral issue of this magnitude justifying a state from overriding a Constitutional right. So why do you object to it when it comes to abortion vs. a state-sanctioned fetal right to life?

Nobody disputes that.... the only difference is the appropriate level of judicial review. State laws infringing upon individual rights are subject to strict scrutiny, are they not?