Mickey Posted July 21, 2005 Share Posted July 21, 2005 I am so sick and tired of that red herring which I have long argued is a meaningless catch phrase that is simply shorthand, an appealing little "jingle" used more as propaganda than any serious statement of legal philosophy. Not everyone has the time to immerse themselves in the nuance and extensive history of consitutional law. That makes it pretty easy to kick out that kind of tripe and have it sound pretty reasonable and attractive to people who have barely enough time to get the kids to school let alone ponder the impact of Schmeeemow vs. Obscuro. I certainly don't want to enter into a debate about abortion itself, the positons of the most frequent posters here are pretty well entrenched so there would be little gained in such a debate. Instead, I would like to hear what people have to say about this "legislating from the bench" glop. As dismissive of it as I am, I recognize and respect that some may see it as not only legit but actually right on target. I am willing to be convinced that I am wrong on this as long as you can manage to state your position without personal insults or regurgitating whatever you read at Conservomatic.com or www.Libs-r-us. To start it off, this idea of "legislating from the bench" is pretty closely tied with the idea of original intent, ie, a court that goes too far beyond what is in the Constitution by reading too much into it, has gone beyond the original intent of the founders and in so doing, is "legislating from the bench". I think that is a pretty accurate statement of the objection by so many on the right that Judges are re-writing the constituiton by expanding it beyond any reasonable interpretation of it. How does that concern jell with the anti-abortion arguement based on the idea that the unborn have rights, that the unborn are persons and that terminating a pregnancy is therefore murder? I am not aware of any proof at all that the Constitution extended rights to the unborn or that the framers ever meant its protections to extend to the unborn, that the unborn were persons. You may disagree that such proof exists and if so, please link to that proof but before you do, tell us what your position would be assuming in fact that there were no such proof as well as your position assuming there is proof that the unborn were covered by the constitution as part of the original intent of the framers. You see, if your position is the same either way then there really is no need to challenge your position on the proof or lack of proof regarding the unborn and original intent. If your position would in fact change, then it might be worth exporing the arguments or proofs that the framers intended the rights embodied in the constitution to extend to the unborn. That seems to be at the core of many anti-aboriton arguments, that the fetus is a person. My sense is that a strict originalist however, would have to stretch pretty far to find a concern about the rights of the unborn on the part of the framers. My belief is that most anti-abortion opponents are against it because they feel in their heart and their bones that it is simply as wrong as wrong could be and it really doesn't matter to them what the law has to say about it. If the law says its legal, the law is wrong and should be changed and if, in fact, an accurate interpretation of the law leads to the conclusion that it should be illegal then fine, lets correct the decisional law that holds to the contrary. If that is the case then really, the whole legislating from the bench thing is meaningless in the context of abortion. Its opponents are against it regardless. Pro-choicers don't use the "legislating from the bench" thing as a justification for their position so that is why I am not bothering to look at their use of the phrase. Occasionally I do hear it from the left but more as an argument they accept solely to turn it around on the pro-lifers since they put so much store in it. This is obviously as controversial a hot-button issue as there is so if we could try to be as respectful of eachother's opinons as possible here we might be able to have a reasonable discussion. If you want to call someone a baby killer or a womb czar, start your own thread. Link to comment Share on other sites More sharing options...
Rich in Ohio Posted July 21, 2005 Share Posted July 21, 2005 wow is it possible for me to get those 3 minutes back? Link to comment Share on other sites More sharing options...
boomerjamhead Posted July 21, 2005 Share Posted July 21, 2005 Mick - there is no way in hell that I can get into a conversation with you in legalese, so I won't even waste your time while simultaneously embarrasing myself. My question to you however is that if there is no such entity as 'legislating from the bench', then how do you explain the behaviors of our lawmakers? They seem to be pretty worked up right now and it's much to do with abortion. A few examples: Statement Of Senator Barbara Boxer On The Nomination Of Judge John G. Roberts July 19, 2005 Washington, D.C. – U.S. Senator Barbara Boxer (D-CA) today issued the following statement regarding the President’s nomination of Judge John G. Roberts to replace Justice Sandra Day O’Connor on the United States Supreme Court: "Without prejudging the nominee, I do believe Judge Roberts’ record raises questions about his commitment to the right to privacy, protection of the environment, and other important issues. "With so many rights of the American people hanging in the balance, this Supreme Court nomination deserves a thorough and in-depth evaluation. "Justice Sandra Day O’Connor’s replacement could take one of two paths: Judge Roberts could go down the same independent, non-ideological road as Justice O’Connor, or he could join with the right-wing block on the Court which has consistently expressed the belief that a woman’s right to choose isn’t guaranteed, nor is the federal government’s ability to protect workers, the environment, and a family-friendly workplace. "I look forward to the in-depth hearings by the Judiciary Committee and a further evaluation of this nominee." John Kerry's front page at senate.gov (I didn't know he had a spanish site until today. That's thinking ahead...) - “Americans deserve a Supreme Court that is fair, independent, ethical and served by justices committed to our constitutional freedoms rather than an ideological agenda. Justice O'Connor refused to use her position as a means to advance a political agenda. In replacing her, we must be confident Judge Roberts will do the same. “We know Judge Roberts is no Sandra Day O’Connor, and the White House has sent a clear signal. There are serious questions that must be answered involving Judge Roberts’ judicial philosophy as demonstrated over his short time on the appellate court. The Senate must learn whether he has clear consistent principles upholding Constitutional standards like civil rights, the right to privacy and Roe v. Wade. “The American people expect the Senate to fulfill its duty to conduct a thorough, independent review of any nominee, and I intend to do exactly that. I hope Judge Roberts and the White House are forthcoming about his qualifications, background and constitutional philosophy so the Senate can act with all the facts. There’s too much at stake to do anything less.” WASHINGTON, DC] – U.S. Senator Dick Durbin (D-IL) today made the following statement regarding President Bush’s nomination of John Roberts to the U.S. Supreme Court: “The next Supreme Court justice will make decisions that will affect the lives of millions of Americans for years to come. Even if a Supreme Court nominee is honest and professionally competent, that person must also be committed to protecting the rights and liberties that are at the core of our democracy.” “The President had an opportunity to unite the country with his Supreme Court nomination, to nominate an individual in the image of Justice Sandra Day O'Connor. Instead, by putting forward John Roberts' name, President Bush has chosen a more controversial nominee and guaranteed a more controversial confirmation process.” “Now the Judiciary Committee will begin its work. For my part, I will look for one thing -- will this nominee strive to protect the rights of all Americans or will he be a judicial activist with an ideological agenda rather than an independent judge with an open mind.” There is no doubt in anyone's mind that this will be the centerpiece issue during this confirmation. I haven't had time to read JGR's opinion where he stated that he felt Roe Vs. Wade was decided wrongly, but maybe that would be a better topic to discuss rather than our forefathers' intentions for the unborn. I mean crap, they didn't even anticipate the extension of these rights to blacks... Link to comment Share on other sites More sharing options...
Alaska Darin Posted July 21, 2005 Share Posted July 21, 2005 Ah, abortion. Perhaps the most pressing problem we face and the single biggest reason our society is failing. Go politicians and the lemmings who buy their crap! Link to comment Share on other sites More sharing options...
Chilly Posted July 21, 2005 Share Posted July 21, 2005 Mick - there is no way in hell that I can get into a conversation with you in legalese, so I won't even waste your time while simultaneously embarrasing myself. My question to you however is that if there is no such entity as 'legislating from the bench', then how do you explain the behaviors of our lawmakers? They seem to be pretty worked up right now and it's much to do with abortion. A few examples: There is no doubt in anyone's mind that this will be the centerpiece issue during this confirmation. I haven't had time to read JGR's opinion where he stated that he felt Roe Vs. Wade was decided wrongly, but maybe that would be a better topic to discuss rather than our forefathers' intentions for the unborn. I mean crap, they didn't even anticipate the extension of these rights to blacks... 387133[/snapback] Its because Boxer is a Democrat and Roberts is a Republican. JGR has also stated after the original statement that he would respect the Roe v Wade precedent and that he considers it part of our law. Ah, abortion. Perhaps the most pressing problem we face and the single biggest reason our society is failing. Go politicians and the lemmings who buy their crap! 387138[/snapback] Of course its not a huge problem, but it is a problem, and if a decision was changed it would effect millions of lives. You don't think a problem that effects millions is worth talking about? Oh yeah, you live in Alaska. Link to comment Share on other sites More sharing options...
Ghost of BiB Posted July 21, 2005 Share Posted July 21, 2005 Ah, abortion. Perhaps the most pressing problem we face and the single biggest reason our society is failing. Go politicians and the lemmings who buy their crap! 387138[/snapback] I have a headache. Link to comment Share on other sites More sharing options...
finknottle Posted July 21, 2005 Share Posted July 21, 2005 Ah, abortion. Perhaps the most pressing problem we face and the single biggest reason our society is failing. Go politicians and the lemmings who buy their crap! 387138[/snapback] To AlQ we look like Nero with a fiddle. Link to comment Share on other sites More sharing options...
Alaska Darin Posted July 21, 2005 Share Posted July 21, 2005 Its because Boxer is a Democrat and Roberts is a Republican. JGR has also stated after the original statement that he would respect the Roe v Wade precedent and that he considers it part of our law. Of course its not a huge problem, but it is a problem, and if a decision was changed it would effect millions of lives. You don't think a problem that effects millions is worth talking about? Oh yeah, you live in Alaska. 387151[/snapback] If they outlaw abortion, it will continue to happen. Whoopie. There are ALOT more pressing problems facing our society than Mary Jane Rotten Crotch and Freddie Joe Mouth Breather not being savvy enough to use the plethora of birth control choices available. But let's waste valuable coin and time worrying about such things. Link to comment Share on other sites More sharing options...
Typical TBD Guy Posted July 21, 2005 Share Posted July 21, 2005 FWIW, my opinion on abortion is that it should be kept legal only under these 2 circumstances: 1. The abortion takes place within the 1st trimester window - as determined by a doctor. 2. The abortion - also to be determined by a doctor - is necessary to save the woman's life. Does that seem fair to everyone? I don't frequent the PPP board that much, so I wouldn't know what everyone's individual opinions on this subject are. Link to comment Share on other sites More sharing options...
Crap Throwing Monkey Posted July 21, 2005 Share Posted July 21, 2005 Does that seem fair to everyone? I don't frequent the PPP board that much, so I wouldn't know what everyone's individual opinions on this subject are. 387198[/snapback] All over the map. And frankly...it's an issue that's never going to be fair to everyone as long as the determination of when life begins remains entierly subjective. That's the biggest problem I have with the whole issue: it basically boils down to a bunch of people saying "I have the right to tell you what to do, because my definition of life is more valid." Yeah, sure, whatever... Link to comment Share on other sites More sharing options...
Kelly the Dog Posted July 21, 2005 Share Posted July 21, 2005 My belief is that the founders believed and intended that the unborn is indeed a person, and has full rights. As long as it is a white sperm, and not an egg. An egg has no rights. A black sperm is only three-quarters of a person, and therefore, for some reason, has no rights. If you're a black egg, you're fukked. Link to comment Share on other sites More sharing options...
VABills Posted July 21, 2005 Share Posted July 21, 2005 So the Supreeme Court legislated abortions 30 years ago But now we don't want them to legislate. I see, as long as they are legislating to have things the way you want it is okay. But when it doesn't meet your goals and opinions it's not okay. Got it. Everyone knows my opinion on abortion, so I don't need to repeat it. But if the they overrule the previous legislated action from the bench I will be happy. I don't belive the constitution or an amendment gave the right to anybody to kill another person. Link to comment Share on other sites More sharing options...
CoachChuckDickerson Posted July 21, 2005 Share Posted July 21, 2005 FWIW, my opinion on abortion is that it should be kept legal only under these 2 circumstances: 1. The abortion takes place within the 1st trimester window - as determined by a doctor. 2. The abortion - also to be determined by a doctor - is necessary to save the woman's life. Does that seem fair to everyone? I don't frequent the PPP board that much, so I wouldn't know what everyone's individual opinions on this subject are. 387198[/snapback] Is this a 1 & 2, or 1 or 2 situation? Link to comment Share on other sites More sharing options...
N.Y. Orangeman Posted July 21, 2005 Share Posted July 21, 2005 If they outlaw abortion, it will continue to happen. Whoopie. There are ALOT more pressing problems facing our society than Mary Jane Rotten Crotch and Freddie Joe Mouth Breather not being savvy enough to use the plethora of birth control choices available. But let's waste valuable coin and time worrying about such things. 387179[/snapback] Amen...oops....I mean... I agree. Link to comment Share on other sites More sharing options...
Kelly the Dog Posted July 21, 2005 Share Posted July 21, 2005 If they outlaw abortion, it will continue to happen. Whoopie. There are ALOT more pressing problems facing our society than Mary Jane Rotten Crotch and Freddie Joe Mouth Breather not being savvy enough to use the plethora of birth control choices available. But let's waste valuable coin and time worrying about such things. 387179[/snapback] But it's imperative that everyone agrees exactly as we do, we're just looking out for them, otherwise they have no chance to go to Heaven. Link to comment Share on other sites More sharing options...
finknottle Posted July 21, 2005 Share Posted July 21, 2005 My belief is that the founders believed and intended that the unborn is indeed a person, and has full rights. As long as it is a white sperm, and not an egg. An egg has no rights. A black sperm is only three-quarters of a person, and therefore, for some reason, has no rights. If you're a black egg, you're fukked. 387215[/snapback] I've never understood this obsession with what some dead guys thought or intended. Suppose they were here to share their thoughts - would people defer? Of course not - so why should we act as if their intentions have any currency as long as they are dead? Link to comment Share on other sites More sharing options...
pkwwjd Posted July 21, 2005 Share Posted July 21, 2005 If they outlaw abortion, it will continue to happen. Whoopie. There are ALOT more pressing problems facing our society than Mary Jane Rotten Crotch and Freddie Joe Mouth Breather not being savvy enough to use the plethora of birth control choices available. But let's waste valuable coin and time worrying about such things. 387179[/snapback] So do you favor "wast[ing] valuable coin" paying for the procedures? If it's money you're worried about, it would be cheaper to outlaw abortion -- from the government's standpoint -- not getting into the insurance angle Link to comment Share on other sites More sharing options...
Alaska Darin Posted July 21, 2005 Share Posted July 21, 2005 So do you favor "wast[ing] valuable coin" paying for the procedures? Not public money - but I think the federal government should be downsized to about 10% of what it currently is. Obey the Constitution and all that. If it's money you're worried about, it would be cheaper to outlaw abortion -- from the government's standpoint -- not getting into the insurance angle 387332[/snapback] You mean like it's cheaper to outlaw drugs? Sure. Link to comment Share on other sites More sharing options...
pkwwjd Posted July 21, 2005 Share Posted July 21, 2005 Not public money - but I think the federal government should be downsized to about 10% of what it currently is. Obey the Constitution and all that.You mean like it's cheaper to outlaw drugs? Sure. 387334[/snapback] I'm glad you know everything ... if I need to formulate my opinion or find out all the facts, I'll be sure to stop by ... Link to comment Share on other sites More sharing options...
Typical TBD Guy Posted July 21, 2005 Share Posted July 21, 2005 Is this a 1 & 2, or 1 or 2 situation? 387254[/snapback] It's a 1 OR 2 situation, i.e. an abortion should be allowed if it meets either of these two conditions. Link to comment Share on other sites More sharing options...
Alaska Darin Posted July 21, 2005 Share Posted July 21, 2005 I'm glad you know everything I don't know everything - just more than you do, apparently. ... if I need to formulate my opinion or find out all the facts, I'll be sure to stop by ... 387338[/snapback] Thanks for the warning. Link to comment Share on other sites More sharing options...
Typical TBD Guy Posted July 21, 2005 Share Posted July 21, 2005 And frankly...it's an issue that's never going to be fair to everyone as long as the determination of when life begins remains entierly subjective. 387208[/snapback] Yeah, but the thing is that we - as a society - MUST at some point make a subjective determination that everyone (or rather, the vast majority) can agree upon. My own personal (and yes, subjective) belief is that human life begins when the human brain starts to form (at about 4 weeks). However, women deserve an extra 2 months to figure out whether or not they're actually pregnant before being penalized for murder....hence, my first trimester rule. Under my definition of life, that would technically make abortion between months 1-3 murder. Nevertheless, this is what societies sometimes do; we make individual life or death situations for the overall good of the society, not unlike killing criminals in the line of fire or waging war against countries. Link to comment Share on other sites More sharing options...
Mickey Posted July 21, 2005 Author Share Posted July 21, 2005 wow is it possible for me to get those 3 minutes back? 387125[/snapback] I knew there would be some who couldn't possibly resist going for a personal insult and I knew somehow that you would be the first such idiot to do so. Nice to see you've set aside this special time to humiliate yourself in public. Link to comment Share on other sites More sharing options...
Live&DieBillsFootball Posted July 21, 2005 Share Posted July 21, 2005 Why start at conception? I believe that life begins at the first neurological impulse that leads to an erection. Anyone who stops the impulse from leading to the birth of a child is guilty of murder. Therefore the following acts should be considered murder: 1. Using any form of birth control, spermacides, coitus interruptus. 2. Jerking off 3. Girls that make you horny but won't have intercourse with you 4. Handjobs 5. BJ's - unless they swallow 6. Not letting a guy finish 7. Women who wear provacative clothing. 8. Hot avatars Link to comment Share on other sites More sharing options...
Live&DieBillsFootball Posted July 21, 2005 Share Posted July 21, 2005 Yeah, but the thing is that we - as a society - MUST at some point make a subjective determination that everyone (or rather, the vast majority) can agree upon. My own personal (and yes, subjective) belief is that human life begins when the human brain starts to form (at about 4 weeks). However, women deserve an extra 2 months to figure out whether or not they're actually pregnant before being penalized for murder....hence, my first trimester rule. Under my definition of life, that would technically make abortion between months 1-3 murder. Nevertheless, this is what societies sometimes do; we make individual life or death situations for the overall good of the society, not unlike killing criminals in the line of fire or waging war against countries. 387374[/snapback] Isn't that what current abortion laws have done, made a subjective determination? Some may say that a fetus is not viable until about 26 weeks or so. Very few babies born before 26 weeks end up living. Female fetuses seem to be viable earlier than males. Right to lifers want to say no to all abortions. Radical pro-choicers think that they should be able to make the decision until the child is born. I think the majority believe as you do, that if an abortion is to be done, it should be done as early as possible. If you can't make up your mind early enough, you need to have the baby unless having it would jeopardize the life of the mother. Link to comment Share on other sites More sharing options...
SilverNRed Posted July 21, 2005 Share Posted July 21, 2005 5. BJ's - unless they swallow 387376[/snapback] I don't think "swallowing" is going to result in a pregnancy any more than "not swallowing" would..... Link to comment Share on other sites More sharing options...
Mickey Posted July 21, 2005 Author Share Posted July 21, 2005 So the Supreeme Court legislated abortions 30 years ago But now we don't want them to legislate. I see, as long as they are legislating to have things the way you want it is okay. But when it doesn't meet your goals and opinions it's not okay. Got it. Everyone knows my opinion on abortion, so I don't need to repeat it. But if the they overrule the previous legislated action from the bench I will be happy. I don't belive the constitution or an amendment gave the right to anybody to kill another person. 387219[/snapback] I thought it was a pretty straight forward question but if you don't want to risk the possibility that finding that an unborn fetus is just as much "legislating from the bench" as is declaring laws prohibiting abortion to be uconstitutional, fine, I understand. "...as long as they are legislating to have things the way you want it is okay." For the record, I have never complained about "legislating from the bench" but have instead argued that it is a political catch phrase that is meaningless. It is the right which complains about legislating from the bench over and over and over ad nauseum. Since they see it as such an important and valid principle, I am curious as to why they so enthusiatically violate it when it suits their purposes whether it be the shameful Schiavo embarassment or legislating, from the bench, that all fetuses are legal "persons". Don't ask me to defend your own principles, I am not the one whose siren call condemns "legislating from the bench". The bottom line I believe is that the pro-life crowd wants an end to abortion and they really don't care whether doing so is or is not legislating from the bench or is in keeping with the original intent of the framers or not. They just believe it is wrong, wrong, wrong. I respect that. What I don't respect is the pretense that their opposition has anything to do with constitutional law. Link to comment Share on other sites More sharing options...
Mickey Posted July 21, 2005 Author Share Posted July 21, 2005 Yeah, but the thing is that we - as a society - MUST at some point make a subjective determination that everyone (or rather, the vast majority) can agree upon. My own personal (and yes, subjective) belief is that human life begins when the human brain starts to form (at about 4 weeks). However, women deserve an extra 2 months to figure out whether or not they're actually pregnant before being penalized for murder....hence, my first trimester rule. Under my definition of life, that would technically make abortion between months 1-3 murder. Nevertheless, this is what societies sometimes do; we make individual life or death situations for the overall good of the society, not unlike killing criminals in the line of fire or waging war against countries. 387374[/snapback] In a larger sense, your viewpoint on this seems to be that the question does not involve absolutes. You then go on to try and fashion what for you is the most reasonable position based on what you know and what you believe. I think that is an entirely reasonable approach even though I might disagree on one or another specific. I think maybe that the two camps on this issue can be divided between those who see it as an abosolute and those who don't. I didn't really want to have a debate on whether abortion should or should not be legal. I was more interested in examining the intellectual road pro-lifers take to get to their legal position. The Supreme Court is not a church and the justices are not priests. They are not going to overturn Roe by citing the bible or through prayer. They are going to have to offer a legal argument. The one I most often hear is that Roe was an exercise in "legislating from the bench" and therefore should be overturned. That is not exactly a detailed legal analysis is it? In Roe, the courts looked at whether or not an unborn fetus was a legal person based on legal and other precedents. They never held that a fetus was NOT a life, just that it was not a "legal person" and therefore its rights and status were subordinate, in part, to the rights of the mother. The Constitution refers to "persons", not "fetuses". In the view of the court that decided Roe, it would have been "legislating from the bench" for them to find that contrary to all available precedent a fetus was a legal person. They declined the opportunity to invent that principle out of thin air. For Roe to be overturned and for it to be overturned by holding that a fetus is a legal person, the court would have to engage in the very legislating the enemies of Roe claim to despise. Again, I am not trying to argue for or against legalized abortion, just that the legal argument against "legislating from the bench" is a farce. I am pretty certain the the enemies of Roe v. Wade really don't care whether the theory used to overturn it is legally sound or not just as long as it is overturned. If they were truly interested in judicial restraint, we would not have witnessed what we did in the Schiavo case. Link to comment Share on other sites More sharing options...
Mickey Posted July 21, 2005 Author Share Posted July 21, 2005 Mick - there is no way in hell that I can get into a conversation with you in legalese, so I won't even waste your time while simultaneously embarrasing myself. My question to you however is that if there is no such entity as 'legislating from the bench', then how do you explain the behaviors of our lawmakers? They seem to be pretty worked up right now and it's much to do with abortion. A few examples: There is no doubt in anyone's mind that this will be the centerpiece issue during this confirmation. I haven't had time to read JGR's opinion where he stated that he felt Roe Vs. Wade was decided wrongly, but maybe that would be a better topic to discuss rather than our forefathers' intentions for the unborn. I mean crap, they didn't even anticipate the extension of these rights to blacks... 387133[/snapback] Actually that last line in your post about not getting into original intent and all sort of illustrates the point I am trying to make, that this whole complaint about "legislating from the bench" is a bunch of hooey. You are absolutely correct, it is all about abortion. One side wants it legal and the other wants it outlawed and neither cares much about the legal theory that gets them there. When one side says they want a judge who will not legislate from the bench, what they really mean is that they want a judge who will overturn Roe. When the other says they want an independent judge with an open mind what they really mean is one who will surprise Bush and vote to keep Roe. This case however is not going to be decided in the waiting room at planned parenthood or at the next meeting of the 700 club. It isn't going to be decided by priests, doctors, ministers or NOW presidents. It is going to be decided by judges and they are going to have to find a legal theory upon which to base their decision. That is the discussion I am trying to have here but I don't think people are very willing to get into that. People would just rather stick to their guns, chant their mantras from "reproductive freedom" to "baby killing" rather than actually conduct an intellectually honest inquiry that has no predetermined outcome in mind. Frankly, it was probably not reasonable to expect that kind of debate on such a hot issue and in a forum that has far more screamers than thinkers. Thanks for the reasoned response, the quotes and the absence of insults. Link to comment Share on other sites More sharing options...
Mickey Posted July 21, 2005 Author Share Posted July 21, 2005 Ah, abortion. Perhaps the most pressing problem we face and the single biggest reason our society is failing. Go politicians and the lemmings who buy their crap! 387138[/snapback] I don't really think the country would be rocketed to hell based on what does or doses not happen to Roe v. Wade. That is why I was trying to focus on the legal theory being cited most often to overturn it, this stuff about legislating from the bench. That theory could be a real problem long after Roe goes wherever it goes the next time a case calls its continued survival into question. Being without a womb and all, I don't have a dog in this fight. I do however actually worry about constitutional law and analysis and I don't like this "legislating from the bench" stuff at all. It is intellectual Binz, you can use it to cover any defective reasoning you like. Besides, I think we can fight the war on terrorism and chew gum at the same time. From a purely political standpoint, the best thing that could ever happen to the democrats might be for Roe to be overturned. Link to comment Share on other sites More sharing options...
Live&DieBillsFootball Posted July 21, 2005 Share Posted July 21, 2005 In Roe, the courts looked at whether or not an unborn fetus was a legal person based on legal and other precedents. They never held that a fetus was NOT a life, just that it was not a "legal person" and therefore its rights and status were subordinate, in part, to the rights of the mother. The Constitution refers to "persons", not "fetuses". In the view of the court that decided Roe, it would have been "legislating from the bench" for them to find that contrary to all available precedent a fetus was a legal person. They declined the opportunity to invent that principle out of thin air. For Roe to be overturned and for it to be overturned by holding that a fetus is a legal person, the court would have to engage in the very legislating the enemies of Roe claim to despise. Again, I am not trying to argue for or against legalized abortion, just that the legal argument against "legislating from the bench" is a farce. I am pretty certain the the enemies of Roe v. Wade really don't care whether the theory used to overturn it is legally sound or not just as long as it is overturned. If they were truly interested in judicial restraint, we would not have witnessed what we did in the Schiavo case. 387451[/snapback] I have enjoyed your take on this issue. It's a nice change form the partisan bickering, although that is fun too. As far as the court deciding things on a constitutional basis, it is always puzzling to me to see so many 5-4 decisions. The justices job is to interpret the Constitution. How can 4 out of 9 disagree so often with the majority? Obviously, politics, religion, and personal beliefs are entering the minds of the judges. This is why this appointment is so crucial as SDO has been on the majority in so many 5-4 decisions. What would be the impact of most of these 5-4 decisions going the other way? Link to comment Share on other sites More sharing options...
ExiledInIllinois Posted July 21, 2005 Share Posted July 21, 2005 I don't really think the country would be rocketed to hell based on what does or doses not happen to Roe v. Wade. That is why I was trying to focus on the legal theory being cited most often to overturn it, this stuff about legislating from the bench. That theory could be a real problem long after Roe goes wherever it goes the next time a case calls its continued survival into question. Being without a womb and all, I don't have a dog in this fight. I do however actually worry about constitutional law and analysis and I don't like this "legislating from the bench" stuff at all. It is intellectual Binz, you can use it to cover any defective reasoning you like. Besides, I think we can fight the war on terrorism and chew gum at the same time. From a purely political standpoint, the best thing that could ever happen to the democrats might be for Roe to be overturned. 387471[/snapback] Totally agree. Link to comment Share on other sites More sharing options...
Adam Posted July 21, 2005 Share Posted July 21, 2005 I certainly don't want to enter into a debate about abortion itself, the positons of the most frequent posters here are pretty well entrenched so there would be little gained in such a debate. 387066[/snapback] I know this isn't what your post was about- but this thought is way too entrenched in our society. Some people don't want open debate on issues, they just want what they want. Majority rules in this country, and thats how it should always be. Link to comment Share on other sites More sharing options...
Alaska Darin Posted July 21, 2005 Share Posted July 21, 2005 Majority rules in this country, and thats how it should always be. 387563[/snapback] Not really. Mob rule is not palatable. Link to comment Share on other sites More sharing options...
Terry Tate Posted July 21, 2005 Share Posted July 21, 2005 I am so sick and tired of that red herring ... meaningless catch phrase ... simply shorthand ... an appealing little "jingle" ... propaganda ... tripe ... glop ... I am willing to be convinced that I am wrong on this as long as you can manage to state your position without personal insults or regurgitating whatever you read at Conservomatic.com or www.Libs-r-us. To start it off, this idea of "legislating from the bench" is pretty closely tied with the idea of original intent, ie, a court that goes too far beyond what is in the Constitution by reading too much into it, has gone beyond the original intent of the founders and in so doing, is "legislating from the bench". I think that is a pretty accurate statement of the objection by so many on the right that Judges are re-writing the constituiton by expanding it beyond any reasonable interpretation of it. ... I am not aware of any proof at all that the Constitution extended rights to the unborn or that the framers ever meant its protections to extend to the unborn, that the unborn were persons. ... My sense is that a strict originalist however, would have to stretch pretty far to find a concern about the rights of the unborn on the part of the framers. ... the whole legislating from the bench thing is meaningless in the context of abortion. First of all, if you want respectful discussion, starting out a rant by describing your opponents' position with insulting, derogatory comments strewn throughout is perhaps not the best way to get the desired result. I guess I've grown accustomed to your style, so I can see past it. But it's deceiptful. As for your point, I think you've perfectly illustrated the definition and context of 'legislating from the bench', which rather contradicted your paragraph about it being a meaningless catch phrase, or mere propaganda. That in and of itself does not appear to be the burr under your saddle - it's the hypocracy of those who would wish to turn around and do the exact same thing from the right. On that point, I would agree. If that's the position some people hold, it is hypocritical of them to rail against 'legislating from the bench' - but that doesn't mean 'legislating from the bench' is a meaningless phrase, it's just hypocritical of them to use it. And yes, there are people like that out there, but it doesn't describe everyone opposed to abortion. I'm pro-life. I personally believe the founders had no thought of the issue of abortion while they were crafting the Constitution. I don't believe Roe V Wade was good law. I think it should be overturned, and the issue left to the states, since the Constitution has absolutely nothing to say about it. If states want to ban it, they need to prove a baby has constitutional rights before it is born (such as the reasonable chance to survive outside the womb, I would suppose). Otherwise, they would be restricting the mother's right to privacy, which they're not allowed to do. Somewhere in between there, there is a period where the mother's right to privacy is in conflict with the baby's right to live (for this argument, I would say a baby that can live outside the womb), and that line is shifting as medical science progresses. Not a simple task, crafting a law that incorporates all of that. Add in congenital birth defects, and it gets more complicated. Quite frankly, a position at either extreme has no place in the Constitution. Link to comment Share on other sites More sharing options...
Reuben Gant Posted July 21, 2005 Share Posted July 21, 2005 Somewhere in between there, there is a period where the mother's right to privacy is in conflict with the baby's right to live (for this argument, I would say a baby that can live outside the womb), and that line is shifting as medical science progresses. 387597[/snapback] Sidenote: I have often wondered when the artificial womb will be created and what that will do to viability arguments. Secondly, I wonder how many people with strong opinions on Roe v. Wade have actually read the decision: The Decision Link to comment Share on other sites More sharing options...
erynthered Posted July 21, 2005 Share Posted July 21, 2005 I knew there would be some who couldn't possibly resist going for a personal insult and I knew somehow that you would be the first such idiot to do so. 387375[/snapback] You take " can I have my 3 minutes back" as a personal insult??? Then call him an Idiot????? That is the lamest, weakest, pile of horse sh*t I've ever seen from you Mick, Christ. Link to comment Share on other sites More sharing options...
Mickey Posted July 21, 2005 Author Share Posted July 21, 2005 I have enjoyed your take on this issue. It's a nice change form the partisan bickering, although that is fun too. As far as the court deciding things on a constitutional basis, it is always puzzling to me to see so many 5-4 decisions. The justices job is to interpret the Constitution. How can 4 out of 9 disagree so often with the majority? Obviously, politics, religion, and personal beliefs are entering the minds of the judges. This is why this appointment is so crucial as SDO has been on the majority in so many 5-4 decisions. What would be the impact of most of these 5-4 decisions going the other way? 387512[/snapback] I think the 5-4 splits are indicative of how the court has become an ideological battle ground. Neither side will allow confirmation of a Judge that will clearly change the balance. However, when the balance isn't really going to be changed, they don't bother with a filibuster. Remember that Souter and Kennedy were Republican appointees and were expected to vote with Rhenquist, Thomas and Scalia to overturn Roe. There was no reason then for Republicans to filibuster Ginsburg or Breyer, both Clinton appointees. They had a majority already, or so they thought. That is why the right went positively balistic when Kennedy and Souter voted to uphold Roe in Planned Parenthood v. Casey. That case weakened the protections of Roe in allowing all sorts of restrictions but it kept the core of Roe intact. Suddenly, all those republicans which had so admired the intellect and judicial philosophy of Souter and Kennedy when they were appointed did a flip-flop and concluded that they were judicial activists. Any way, given the way the parties deal with nominees perceived as changing the balance or not doing so, it was inevitable that the court would be split a lot 5-4. As for the impact of that, a 5-4 opinion is not as strong as a 9-0 opinion which is what the vote in Roe was. Normally, it would not be appropriate to overturn such a powerful precedent by a lousy 5-4 vote. In essence, the total vote on Roe over the years if it were overturned would be 13-5 with the opinions of 5 justices overruling 13. Allowing that kind of thing can lead to a yo-yo effect which undermines the court, the constitution and the rule of law. You could have abortion going in and out of legality. Judges using real discretion and restraint would wait to until a more powerful majority against Roe could emerge. Of course, if you are a justice and you are convinced that abortion is murder then you are just going to overturn Roe no matter what, the law and precedent be damned. Link to comment Share on other sites More sharing options...
Reuben Gant Posted July 21, 2005 Share Posted July 21, 2005 I don't think "swallowing" is going to result in a pregnancy any more than "not swallowing" would..... 387401[/snapback] your right. Storks bring babies. Swallows don't. Link to comment Share on other sites More sharing options...
Mickey Posted July 22, 2005 Author Share Posted July 22, 2005 First of all, if you want respectful discussion, starting out a rant by describing your opponents' position with insulting, derogatory comments strewn throughout is perhaps not the best way to get the desired result. I guess I've grown accustomed to your style, so I can see past it. But it's deceiptful. As for your point, I think you've perfectly illustrated the definition and context of 'legislating from the bench', which rather contradicted your paragraph about it being a meaningless catch phrase, or mere propaganda. That in and of itself does not appear to be the burr under your saddle - it's the hypocracy of those who would wish to turn around and do the exact same thing from the right. On that point, I would agree. If that's the position some people hold, it is hypocritical of them to rail against 'legislating from the bench' - but that doesn't mean 'legislating from the bench' is a meaningless phrase, it's just hypocritical of them to use it. And yes, there are people like that out there, but it doesn't describe everyone opposed to abortion. I'm pro-life. I personally believe the founders had no thought of the issue of abortion while they were crafting the Constitution. I don't believe Roe V Wade was good law. I think it should be overturned, and the issue left to the states, since the Constitution has absolutely nothing to say about it. If states want to ban it, they need to prove a baby has constitutional rights before it is born (such as the reasonable chance to survive outside the womb, I would suppose). Otherwise, they would be restricting the mother's right to privacy, which they're not allowed to do. Somewhere in between there, there is a period where the mother's right to privacy is in conflict with the baby's right to live (for this argument, I would say a baby that can live outside the womb), and that line is shifting as medical science progresses. Not a simple task, crafting a law that incorporates all of that. Add in congenital birth defects, and it gets more complicated. Quite frankly, a position at either extreme has no place in the Constitution. 387597[/snapback] The most important question I have for you is why is it preferable to you for states to decide for themselves whether abortion should be legal? Link to comment Share on other sites More sharing options...
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