The Left Needs to Take Back the Constitution

[NatMorton]

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?

Yes, I believe they do. But doesn't the life of another person, as defined within that state's jurisdiction, qualify?

I know it's an extreme example, but I mentioned religious human sacrifice earlier. Do you think denying that religious practice should pass the strict scrutiny test?

 

[eman623]

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

It's not like Roe ever brought the country together. If anything IT threatened to pull the country apart.

The differences exist whether there's a national law or not. That's the beauty of Federalism. Now that each state can decide for itself, that might work out to be a better strategy to satisfy the greatest number of people.

 

[watsup]

It's not like Roe ever brought the country together. If anything IT threatened to pull the country apart.

The differences exist whether there's a national law or not. That's the beauty of Federalism. Now that each state can decide for itself, that might work out to be a better strategy to satisfy the greatest number of people.

And screw the women in the extremist red states by costing them money and travel time to get an abortion, and thereby making it basically unavailable to those of less financial means who, many times, are those on most need of one. The government taking possession of the bodies of women at the very moment of conception is about as fascist as it can get.

 

[Cordelier]

Yes, I believe they do. But doesn't the life of another person, as defined within that state's jurisdiction, qualify?

I know it's an extreme example, but I mentioned religious human sacrifice earlier. Do you think denying that religious practice should pass the strict scrutiny test?

That's a weird hypothetical, Nat... can you cite any specific State laws barring human sacrifice?

The way I figure it, if some neo-Aztec religion performed a human sacrifice, it's pretty likely the High Priest would be charged with murder. If he attempted to mount a First Amendment defense for those charges, I think it'd get dispensed with pretty quickly.

As for your first point - from where in the Constitution do States gain the right to determine when life begins?

 

[Jredbaron96]

. So why do you object to it when it comes to abortion vs. a state-sanctioned fetal right to life?

The Court does not advance the argument of fetal personhood, it merely raises the existence of the debate and then uses the controversy to justify separating it from the right to privacy.

Again, the very same argument can be applied to contraceptives. Following the logic of the Court, the Majority could just as easily argue that contraceptive legality is best left up to the States and not the Federal Government.

 

[Jredbaron96]

It's not like Roe ever brought the country together. If anything IT threatened to pull the country apart.

The differences exist whether there's a national law or not. That's the beauty of Federalism. Now that each state can decide for itself, that might work out to be a better strategy to satisfy the greatest number of people.

If won't. The prolife platform will not be satisfied by a state to state decision making process.

 

[NatMorton]

The Court does not advance the argument of fetal personhood, it merely raises the existence of the debate and then uses the controversy to justify separating it from the right to privacy.

This court shows that restraint, as they should, The Roe court not only advanced an argument on fetal personhood, it imposed a fetal personhood standard on all 50 states, which is my point. They had no authority to do that.

Again, the very same argument can be applied to contraceptives. Following the logic of the Court, the Majority could just as easily argue that contraceptive legality is best left up to the States and not the Federal Government.

It's possible the Dobbs argument could be extended to IUDs or the abortion pill, as those are post-conception measures. It couldn't for birth control pills or condoms. No other human life is involved there since no other human life is created.

 

[Jredbaron96]

It couldn't for birth control pills or condoms. No other human life is involved there since no other human life is created.

No, you are mistaken. Dobbs did not rest on fetal personhood. The act of "potential life" as utilized by the Court did not endorse fetal personhood, it just raised the spectre of debate.

The same logic could be applied to contraceptives because you can just as easily argue that 1. The US has a history of banning contraceptives, 2. They interfere with the process of "potential life" and 3. can be argued to be a critical moral question, as it was once.

 

[NatMorton]

No, you are mistaken. Dobbs did not rest on fetal personhood. The act of "potential life" as utilized by the Court did not endorse fetal personhood, it just raised the spectre of debate.

I never said the Dobbs endorsed fetal personhood. It does, however, account for states having the right to define fetal personhood, which they do.

The same logic could be applied to contraceptives because you can just as easily argue that 1. The US has a history of banning contraceptives, 2. They interfere with the process of "potential life" and 3. can be argued to be a critical moral question, as it was once.

Fair point. Perhaps the Dobbs argument could not be extended in that way, and if so, you shouldn't worry about it.

 

[Jredbaron96]

I never said the Dobbs endorsed fetal personhood. It does, however, account for states having the right to define fetal personhood, which they do.

Which is just referencing the argument by saying its a critical moral question.

The standard the Court has set now is that you can isolate rights at will if you can claim theres controversy around them and that they lack historical or traditional basis. There's a reason the Court had to backtrack and insist contraceptives, same sex marriage, and interracial marriage wouldn't be next.

 

[NatMorton]

Which is just referencing the argument by saying its a critical moral question.

The standard the Court has set now is that you can isolate rights at will if you can claim theres controversy around them and that they lack historical or traditional basis. There's a reason the Court had to backtrack and insist contraceptives, same sex marriage, and interracial marriage wouldn't be next.

No, you're overstating the criterion from Dobbs. They did not declare any "controversy" could be so used. They said a matter of life and death can be justification for impinging on a Constitutional right.

 

[Cordelier]

No, you're overstating the criterion from Dobbs. They did not declare any "controversy" could be so used. They said a matter of life and death can be justification for impinging on a Constitutional right.

Didn't they deny the existence of the Constitutional right?

 

[NatMorton]

Didn't they deny the existence of the Constitutional right?

No, they did not. They did affirm the conditions under which a Constitutional right can be impinged; i.e. when exercising that right threatens (or ends) the life of another.

 

[Cordelier]

No, they did not. They did affirm the conditions under which a Constitutional right can be impinged; i.e. when exercising that right threatens (or ends) the life of another.

Okay... that may or not be be a compelling state interest. But what about the other criteria for meeting strict scrutiny? (ie, narrowly tailored, least restrictive means, etc.) Would you agree that they should still be applicable?

 

[NatMorton]

Okay... that may or not be be a compelling state interest. But what about the other criteria for meeting strict scrutiny? (ie, narrowly tailored, least restrictive means, etc.) Would you agree that they should still be applicable?

How on earth can you say the life of another "may or may not be a compelling state interest?" Risk to life and limb passes almost any strict scrutiny test.

But yes, you may be on to something. If we dismiss the state's stated compelling interest, they may no longer have a compelling interest.

 

[watsup]

How on earth can you say the life of another "may or may not be a compelling state interest?" Risk to life and limb passes almost any strict scrutiny test.

But yes, you may be on to something. If we dismiss the state's stated compelling interest, they may no longer have a compelling interest.

You evidently still think that a zygote is somehow equivalent to a born baby. Same extremist interpretation as always.

 

[eman623]

If won't. The prolife platform will not be satisfied by a state to state decision making process.

Right, and the extreme pro-choice who want national abortion policy up to the point of birth won't be satisfied either. But I'm not interested in the radical fringes on either side. I'm more interested in giving the larger block in-between the two extremes what they want.

The fringes can take solace in knowing they can make their states pro-life or pro-choice as they choose. They just don't get to boss other states around.

 

[Cordelier]

How on earth can you say the life of another "may or may not be a compelling state interest?" Risk to life and limb passes almost any strict scrutiny test.

But yes, you may be on to something. If we dismiss the state's stated compelling interest, they may no longer have a compelling interest.

That all depends on establishing a standard when life begins, though. I maintain that is up to the Congress to decide - not the States. Every age-related provision within the Constitution - be it citizenship by birth, eligibility for office, voting rights, etc., all begin from birth. The States may legislate that life begins at conception or whatever point they want... but couldn't any determination they come to that establishes life before birth be preempted by Congress exercising it's Article IV §1 power to pass a general law to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof" ?

 

[NatMorton]

That all depends on establishing a standard when life begins, though.

Which is the point I've been making to you and others for a long time here on DP. The legal (as opposed to moral) debate on abortion all comes down to a definition of human life. Privacy is a sideshow.

I maintain that is up to the Congress to decide - not the States. Every age-related provision within the Constitution - be it citizenship by birth, eligibility for office, voting rights, etc., all begin from birth.

That is true but that fact doesn't bestow an authority on the federal government to override a state's preferred definition. At most those clauses mean that federally protected rights begin at birth. That does not mean a state is prohibited from establishing its own right to life at an earlier point and within its own jurisdiction.

BTW, if you're right about this, Roe was unconstitutional since it permitted a right to life in the third trimester, i.e. before birth.

The States may legislate that life begins at conception or whatever point they want... but couldn't any determination they come to that establishes life before birth be preempted by Congress exercising it's Article IV §1 power to pass a general law to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof" ?

No. There is no stated authority in the Constitution that allows any branch of federal government to supercede a state's preferred definition of whan right to life begins. It's simply not there.

 

[watsup]

Right, and the extreme pro-choice who want national abortion policy up to the point of birth won't be satisfied either. But I'm not interested in the radical fringes on either side. I'm more interested in giving the larger block in-between the two extremes what they want.

The fringes can take solace in knowing they can make their states pro-life or pro-choice as they choose. They just don't get to boss other states around.

No one wants abortion up to birth, Why do you keep telling that lie. It only undercuts any potentially valid points that you might have.

 

[Jredbaron96]

No, you're overstating the criterion from Dobbs. They did not declare any "controversy" could be so used.

No, they said "critical moral question" that "involves life".

 

[Cordelier]

Which is the point I've been making to you and others for a long time here on DP. The legal (as opposed to moral) debate on abortion all comes down to a definition of human life. Privacy is a sideshow.


That is true but that fact doesn't bestow an authority on the federal government to override a state's preferred definition. At most those clauses mean that federally protected rights begin at birth. That does not mean a state is prohibited from establishing its own right to life at an earlier point and within its own jurisdiction.

BTW, if you're right about this, Roe was unconstitutional since it permitted a right to life in the third trimester, i.e. before birth.


No. There is no stated authority in the Constitution that allows any branch of federal government to supercede a state's preferred definition of whan right to life begins. It's simply not there.

Let us say that Congress passes a law that says life begins at viability - in short, it re-establishes the Roe standard. Under the terms of Articles IV §1 & Article VI cl. 2, why doesn't that preempt the 50 various State standards? Preemption doctrine is still an operative legal concept, is it not?

 

[NatMorton]

Let us say that Congress passes a law that says life begins at viability - in short, it re-establishes the Roe standard. Under the terms of Articles IV §1 & Article VI cl. 2, why doesn't that preempt the 50 various State standards? Preemption doctrine is still an operative legal concept, is it not?

Because Congress derives its zones of authority from the same document as does the Judiciary. There is no provision of the Constitution granting any branch of the federal government the authority to impose a legal standard of human life on the states. It's simply not there.

 

[Cordelier]

Because Congress derives its zones of authority from the same document as does the Judiciary. There is no provision of the Constitution granting any branch of the federal government the authority to impose a legal standard of human life on the states. It's simply not there.

Sure it is... Article IV §1. If the States are all establishing their own standards of when life begins, Congress can step in and establish the prevailing standard. Life begins at viability. Full stop. It's a general law that establishes the national standard.

And thanks to the Supremacy clause (Article VI, cl. 2), the States must abide by the legal standard established by Congress.

Seems pretty straight-forward to me.

 

[NatMorton]

Sure it is... Article IV §1. If the States are all establishing their own standards of when life begins, Congress can step in and establish the prevailing standard. Life begins at viability. Full stop. It's a general law that establishes the national standard.

And thanks to the Supremacy clause (Article VI, cl. 2), the States must abide by the legal standard established by Congress.

Seems pretty straight-forward to me.

You're going to need to explain that. You seem to be saying that Congress can override any state law it wishes to.