perfidy

Ross - 2 Points:

1) When it comes to legal decisions, I don’t care about ancient concepts. I care about the Constitution. When the Constitution is silent on an issue, the Court should be also.

2) Your summary makes it sound like only 1st Trimester abortions are guaranteed by the Court, that is not the case. If the Supreme Court did not confer an arbitrary right of abortion in Roe v. Wade, they certainly did in Stenberg v. Carhart in 2000 when they struck down a Nebraska ban on partial birth abortions. Partial birth abortions are usually performed very late in a pregnancy and never in the 1st Trimester.

Lower Federal Courts have already struck down the 2003 Federal ban on partial birth abortions based on the Stenberg v. Carhart decision. I believe the 2003 Federal ban to be unconstitutional based on the 10th Amendment, not earlier court cases.

Had the Court based the ruling in Roe on a plain reading of the Ninth Amendment, it would have been on stronger ground (and established a more felicitous precedent). I still believe the matter is better left to the states, though.

I am going to make one comment on this and one comment only, then you men can decide what you think you want to control over my own reproductive, thus *economic* rights.

IMHO, the current problem over the abortion debate is now the movement to define a fetus with legal rights before birth. I have a serious problem with this because I don't think Scott Petersen should have been charged with the death of a baby that was not born. The f*cker should fry for what he did to his wife, who *happened to be pregnant*. But once you set the legal precedent on giving a fetus legal status, you tread on dangerous ground. States are now legislating fetal homicide to the point where even a simple spontaneous miscarriage can be construed as homicide.

I don't know what to say other than most people are stupid and don't know how to draft good legislation, so they ask their representatives to propose ridiculous laws.

Ok. I stop now.

Mapgirl, We are debating judicial activism as it relates to the abortion issue, not whether or not abortion itself should be legal.

I personally have mixed feelings about the whole thing. (Basically early term okay, late term not okay - I have 2 kids which has changed my position a bit)

What I was arguing is that the state legislatures, not the federal courts is the place where the issue should be decided. The Judicial takeover of this issue is one reason the judicial branch of our government has become highly politicized.

Roe lays down a few tests. The point-of-viability argument is one of them. Another is the health of the mother. From Roe v Wade:

" `subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.' " Id., at 879 (quoting Roe v. Wade, supra, at 164-165)

The key phrase here is preserving the life or health of the mother. It is unconstitutional for the state to make a law that endangers the health of the mother. To increase risk is to endanger.

Stenberg v Carhart (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol…) found that the Nebraska law was directed at a particular _technique_, and that technique could be less risky to the health of the mother than alternative techniques. In other words, the law increased risk to the mother. Further, the court found that Nebraska had failed to include the required "except for the health of the mother" clause; Nebraska claimed that no such clause was necessary. The Court disagreed. Nebraska's omission of the clause was a deliberate attempt to weaken the decided law of Roe, and the court correctly dealt with it as such.

At no point in the Stenberg case did the Court "confer an arbitrary right of abortion"; to assert this is ridiculous. It is plainly obvious that post viability any state may rule abortions illegal, and many have. What they may NOT do is pass any law that results in an increase in risk to, or endangers the health of, the mother.

To see why, we can extend the court's principal to the absurd: A state could pass laws banning, one by one, all safe techniques for abortion post viability, leaving only distinctly dangerous methods. While I have characterized this as absurd, this is precisely what the anti-choice movement would have pursued next, had the court not ruled the way it did.

Ken -- matters of religion and liberty do belong at the federal level, as the structure of society with regard to these issues is dictated by the constitution. Personally I think the viability point is about as good a spot as you're going to find for creating a balance on the abortion issue.

After that, according to Roe v Wade, it's largely up to the states.

p.s. Bram -- once again you gotta read what you write some times ;) You don't consider the constitution to be "ancient"? I think it's one of the oldest (if not THE oldest) documents forming the basis of a current society. The "quickening" concepts seem to date to somewhere in the middle of the last millenium, which is more or less contemporaneous to the constitution.

Our system of law is pervaded with bits and pieces of law that date back to the 13th century, and even before. Courts can and do go WAY back when they're rendering decisions...

Ross,

I don't consider a 220 year old document "ancient." I consider the Peloponnesian War ancient.

You date the quickening thing to the "middle of the last millenium." Does that mean about 500 years ago? That would make it 380 years older than the Constitution yet this makes it "more or less contemporaneous to the constitution"?

Since the Constitution is 220 years old, this would make it contemporaneous to us by that standard.

Like Jonah Goldberg, I want a dead constitution. http://www.nationalreview.com/goldberg/goldberg.asp

Bram/Ross,

I agree with Bram. I believe the earliest codification of law was the Code of Hammurabi, and then Solon after that. Those are 'ancient'.

I wouldn't describe the constitution as ancient, since that often connotes 'irrelevant', which certainly isn't the case.

m.

Oh, what the hell. I'll jump in. I personally hate discussing this topic, but I'll nibble around the edges a bit.

Regarding the meaning of the constitution:

The Constitution is remarkably explicit about a lot of things. If you are going to accept that words have meaning, some things are more or less verboten for the government. "Congress shall make no law..." and the like clearly mean that well, Congress shall make no law regarding the topic in question. When the Ninth and Tenth amendments say that anything not expressly permitted to the Fed is reserved to the states or the people, that would seem to imply that if it ain't mentioned in the Constitution, it don't fly.

Naturally, there are some vague areas; and places where you need some fine points shaved finer. That's where the Supreme Court is useful. But in the case of Kelo, the decision clearly goes contrary to the plain meaning of "public use" as Thomas pointed out in his dissent.

There are vast swaths of the government that seem unconstitutional to my eyes. I challenge you to find any part of the Constitution that authorizes something like the Department of education. (Or any evidence that it does any good, for that matter.) Not that I am in principle against having a DoE, but there aught to be some constitutional basis for setting it up.

Many people who are for gun control twist themselves up in knots over the second amendment. But "the right of the people to keep and bear arms shall not be infringed" is pretty clear. Also, that style wording is always associated with individual rights in the Constitution, and in other documents of the time. And the the militia bit before it is just an explanation why that right shouldn't be infringed, not a reason why it should. So how do you explain most of our gun laws, most of which clearly infringe the right of the people to keep and bear arms?

Now, with other rights, there are limitations. Like screaming, "Fire!" in a theater. So we can limit gun rights for felons, or minors, and so on. But you can't take it away without changing the Constitution.

The flip side of that is Roe v. Wade, where you have a right that is never mentioned in the Constitution. That would put it back to the states according to the ninth and tenth amendments.

But the problem, as Ross rightly points out, is the definition of a person, or citizen. You may recall that we had another big problem almost a hundred fifty years ago with that.

On the one side, you have people who say that the rights of the woman trump everything else. Until the fetal matter pops out, its not a person. But once it does, it magically becomes a person with rights and protected by the law. At the opposite end, you have people who think that at the moment of conception, it becomes a person and should have the protection of the law.

This is really the crux of the whole thing. If the fetus isn't a person, then the pregnant woman can do what she wants. But if it is, then she has a moral and legal obligation not to do it harm. And an abortion surely does harm the fetus.

Most people aren't confortable with late term abortions because its too much like aggressive infanticide. But if that is the case, it would certainly still be the case months earlier. Left alone, that fetus would eventually be born and become a person with rights & etc.

I think the only way to resolve the issue - because the Supreme Court screwed the pooch and made a huge issue out of it by making it impossible to reach any sort of compromise - is by constitutional amendment defining when, exactly, you become a person.

Bram, nice thought about the "dead constitution", but it's not serious. When was the last time the constitution was amended? It's been quite a while. The constitution IS dead, as far as I can see. The only people proposing changes to it are the screw-the-gays types. What this really boils down to is that you disagree with the interpretations that have been reached. Parties come before the SC, generally arguing constitutional issues, and the SC attempts to apply it. Are you saying that this should not occur? Then who decides the dispute?

The whole point of having a constitution is that everyday laws, practices, and policies are tested against it. These everyday matters necessarily evolve over time, and necessarily require interpretation with respect to the constitution.

My best guess is that you remain convinced that judges have somehow manufactured law, in Roe v Wade for example. The job of the SC in that instance was not to grant a right to abortion, but to indicate which parts of the law contravened the constitution. The constitution says "life and liberty". The SC interprets this as "can't endanger the mother", and "can't tell someone what to do before it's a person". There's your constitution at work.

I can't help but note that you haven't responded to any of the other points I made, other than to define middle of the last century for me. Maybe it's not quite as straightforward as you thought, when the assumptions are challenged. Hey, if someone told me that judges were "writing new laws from the bench" I'd be pissed about it too. But at some point we have to determine if that's what's actually happened.

Buckethead, I'd suggest that the SC did reach the correct compromise. You'll have to elaborate if you think the "Person Point" should be moved somewhere other than the end of the first trimester.

Ross, I'd have to say no, because a reasonable compromise would have reduced the debate, rather than heightened it. Once the Supreme Court made its decision, there was no appeal. No one could ever challenge it, no state law nor even any federal law could go against the Judicial fiat. It removed the possibility of popular, legistlative compromise, or of different rules in different places.

As for what is a person: after the first trimester, a fetus left alone will become a person in a matter of months. In the first trimester, a fetus left alone will become a person in a matter of months. What is the difference?

If we can recognize that a person with Alzheimers is still a person despite having no mental faculties, we should be able to recognize that someone will soon be a person, and be accorded human rights.

When was the last time the constitution was amended? It’s been quite a while. The constitution IS dead, as far as I can see. The only people proposing changes to it are the screw-the-gays types.

Wow Ross. The first three lines of that quote are some of the scariest statements I've read in a while. The US Constitution is a remarkable thin document considering how much it guides all the laws of the land for every jurisdiction. As a nation, we don't decide things by popular referendum and I think that's a good thing considering the crap that gets put on TV when people vote with their remote controls.

The Constitution is incredibly difficult to change and has not evolved over time because we rely on interpretation instead of spelling everything out. It's beautiful in its flexibility as a guiding document. I shudder at the idea of popular referenda since I've seen first hand how CA has been effed up by letting the underinformed and ignorant decide what's best. I'm an intellectual snob (I've said it before and I am a fairly unrepentant one too.) and I think our constitution makes a lot of sense precisely because changes have to be something that everyone, EVERYONE, really really wants and not just wants this year and changes their mind 20 years down the road.

For the record, I'm also for sunset clauses in the Patriot Act and a lot of other laws.

Ross, apparently you haven't heard about the Second Bill of Rights folks, the ones convinced that the Fourteenth Amendment outlaws income inequality.