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The point was and remains that the logic behind your previous argument did not at all flow and follow from Britain to America, which I believe clearly comes across as being super true in my post.
Now it sounds like you wish to base your argument on the notion that because Federal courts were given jurisdiction over cases arising under the Constitution that the Founding Fathers necessarily intended to give the Supreme Court the awesome power of Constitutional determination. In other words, whoever ended up with "jurisdiction over cases arising under the Constitution", your logic would contend that the Founding Fathers necessarily intended to give them clarte blanche to reject a work product of Congress.
Unfortunately, that logic does not necessarily follow either, because nowhere in the Constitution does it explicitly state that the Supreme Court was granted that awesome power.
What you want others to believe is that even though the Founding Fathers wanted to clearly establish and/or enumerate as necessary the powers granted to the three branches of government -- as evidenced by their incredible desire to do so when they enumerated 18 specific powers of Congress, the final one of which explicitly gave Congress the power to pass laws as necessary to execute the other 17 powers -- that the Founding Fathers also intended to give the Supreme Court the power to strike down laws passed by Congress but that they had no intention to explicitly say so in the Constitution.
Moreover, had the Founding Fathers intended to grant the Supreme Court with a power of final authority over what is Constitutional, then they would have necessarily placed the Supreme Court above Congress when it comes to which branch has the final say over whether or not laws are Constitutional. Obviously, the Founding Fathers could then not have established three equal but separate branches of government, because, per you, they intended to have Congress beholding to the Supreme Courts' final authority over laws passed by Congress. Again, per you, this was their intent even though they never explicitly said that in the Constitution or anywhere else.
Furthermore, you are the one who propositioned the argument that the Founding Fathers drew on the experience of British jurisprudence in crafting the Constitution, yet British jurisprudence did not grant and never has granted the Supreme Court with the power of Constitutional determination. So your previous argument works directly against your new argument.
In this whole regard, what is clear is exactly what the Founding Fathers intended to make explicit and did make explicit when they articulated the Tenth Amendment; i.e., “Thepowers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Essentially, we have two theories about constitutional interpretation. We have your theory and we have that expressed by "The City by the Bridge".
The problem is that your theory has been rejected not only by the courts, but by Congress, and the people as well.
I can say this because in the 211 years since Marbury v. Madison was decided by the Supreme Court there has been no constitutional amendment, no constitutional convention called, and no serious attempt by either the President or by Congress to say that the Supreme Court lacks the power to overturn acts of Congress. For that matter, I don't even read letters-to-the-editor complaining about what the Supreme Court has done. The voters don't seem put-out either.
You can argue (and you have already shown that you will) that from a legal standpoint the authority doesn't exist. Its simply that where it matters, i.e. the Supreme Court, Congress, the President, the electorate, you've lost. Respectable argument, but it hasn't resonated with anyone that matters and so its not taken seriously.
Essentially, we have two theories about constitutional interpretation. We have your theory and we have that expressed by "The City by the Bridge".
The problem is that your theory has been rejected not only by the courts, but by Congress, and the people as well.
I can say this because in the 211 years since Marbury v. Madison was decided by the Supreme Court there has been no constitutional amendment, no constitutional convention called, and no serious attempt by either the President or by Congress to say that the Supreme Court lacks the power to overturn acts of Congress. For that matter, I don't even read letters-to-the-editor complaining about what the Supreme Court has done. The voters don't seem put-out either.
You can argue (and you have already shown that you will) that from a legal standpoint the authority doesn't exist. Its simply that where it matters, i.e. the Supreme Court, Congress, the President, the electorate, you've lost. Respectable argument, but it hasn't resonated with anyone that matters and so its not taken seriously.
I don't mind you declaring that you won; I'm not surprised that you did that.
Moreover, I certainly didn't and don't expect to change anything by arguing against your various positions based on the evidence that supports or does not support the "intent" of the Founding Fathers.
I well know and appreciate the reality that nothing will take place on this issue in my lifetime. I know too that the vast majority of people do not understand our Constitution and what the Founding Fathers intended to leave America with versus what we have today.
It's simply the issue of "intent" has long bothered me tremendously, because of what Madison v. Marbury has wrought upon this country that has resulted in our now having 9 Supreme Court Justices decide cases that the Founding Fathers assuredly intended to be decided via Constitutional Amendment, such as Roe v. Wade.
And some people that read here just might well learn something and truly start to get a grass roots understanding of what has happened to basic American principles from reading the various arguments.
My posts truly amount to but an attempt to be helpful to people I know not and almost assuredly never will. To me posting in this thread has been akin to the starfish story that places a focus on making a difference. It goes:
An old man had a habit of early morning walks on the beach. One day, after a storm, he saw a human figure in the distance moving like a dancer. As he came closer he saw that it was a young woman and she was not dancing but was reaching down to the sand, picking up a starfish and very gently throwing them into the ocean.
“Young lady,” he asked, “Why are you throwing starfish into the ocean?”
“The sun is up, and the tide is going out, and if I do not throw them in they will die.”
“But young lady, do you not realize that there are miles and miles of beach and starfish all along it? You cannot possibly make a difference.”
The young woman listened politely, paused and then bent down, picked up another starfish and threw it into the sea, past the breaking waves, saying, “It made a difference for that one.”
[When I tell this story to adult audiences, I stop there. But when I've tell it to children, I always add the rest of the story.]
The old man looked at the young woman inquisitively and thought about what she had done. Inspired, he joined her in throwing starfish back into the sea. Soon others joined, and all the starfish were saved.
I don't mind you declaring that you won; I'm not surprised that you did that.
Moreover, I certainly didn't and don't expect to change anything by arguing against your various positions based on the evidence that supports or does not support the "intent" of the Founding Fathers.
I well know and appreciate the reality that nothing will take place on this issue in my lifetime. I know too that the vast majority of people do not understand our Constitution and what the Founding Fathers intended to leave America with versus what we have today.
It's simply the issue of "intent" has long bothered me tremendously, because of what Madison v. Marbury has wrought upon this country that has resulted in our now having 9 Supreme Court Justices decide cases that the Founding Fathers assuredly intended to be decided via Constitutional Amendment, such as Roe v. Wade.
And some people that read here just might well learn something and truly start to get a grass roots understanding of what has happened to basic American principles from reading the various arguments.
When we began this discussion, I suspected that your motivating concern was decisions like Roe v. Wade (and, presumably, other decisions in the 'substantive due process' realm--Griswold v. Connecticut, for example). The evidence we have--coming from Article III, Article VI, the Federalist Papers, the arguments of the delegates to the Constitutional Convention, and two centuries of jurisprudence reflect the intent of the Founders as supporting judicial review.
The Constitution is not silent on the matter, but provides 'arising under' jurisdiction to the judiciary and provides that the Comstitution is the 'Supreme Law of the Land.'
Judicial power, at the time of the founding, included the power (and obligation) to interpret the law. Both Article I and the Bill of Rights are limitations on US legislative power--limitations that must be respected by the judicial branch.
If Roe is your concern, then turn your ire to substantive due process. If judicial review is really your concern, then try to get Articles III and VI amended.
The point was and remains that the logic behind your previous argument did not at all flow and follow from Britain to America, which I believe clearly comes across as being super true in my post.
Now it sounds like you wish to base your argument on the notion that because Federal courts were given jurisdiction over cases arising under the Constitution that the Founding Fathers necessarily intended to give the Supreme Court the awesome power of Constitutional determination. In other words, whoever ended up with "jurisdiction over cases arising under the Constitution", your logic would contend that the Founding Fathers necessarily intended to give them clarte blanche to reject a work product of Congress.
Judicial power includes, by necessity, the power to interpret the law. The Supreme Law of the United States is the Constitution. In order to do their job--to exercise the judicial power--judges must interpret it. When Congress exceeds its powers, or violates individual rights granted under the Constitution, it is the duty of the judiciary to remedy Congress' statute through interpretation, or, if not possible, to recognize its unconstitutionality, in whole or in part. That is not carte blanche, but it is an obligation to ensure that challenged statutes pass constitutional scrutiny.
Quote:
Originally Posted by Wudge
Unfortunately, that logic does not necessarily follow either, because nowhere in the Constitution does it explicitly state that the Supreme Court was granted that awesome power.
The judicial power is vested in the Supreme Court. That power includes interpretation of the law in Cases and Controversies arising under, inter alia, the Constitution. The Constitution is the Supreme Law of the Land.
Quote:
Originally Posted by Wudge
What you want others to believe is that even though the Founding Fathers wanted to clearly establish and/or enumerate as necessary the powers granted to the three branches of government -- as evidenced by their incredible desire to do so when they enumerated 18 specific powers of Congress, the final one of which explicitly gave Congress the power to pass laws as necessary to execute the other 17 powers -- that the Founding Fathers also intended to give the Supreme Court the power to strike down laws passed by Congress but that they had no intention to explicitly say so in the Constitution.
The enumerated powers apply to the Legislative Branch, as I have mentioned at least three times now. There is also the Executive Power, vested in the President, and the Judicial Power, vested in the Supreme Court. Those powers are separate from the limited Article I, section 8 powers provided to Congress. The Judicial Power is not one of the 18 clauses in Article I, section 8 because it is an Article III power--a power of the judiciary.
Quote:
Originally Posted by Wudge
Moreover, had the Founding Fathers intended to grant the Supreme Court with a power of final authority over what is Constitutional, then they would have necessarily placed the Supreme Court above Congress when it comes to which branch has the final say over whether or not laws are Constitutional. Obviously, the Founding Fathers could then not have established three equal but separate branches of government, because, per you, they intended to have Congress beholding to the Supreme Courts' final authority over laws passed by Congress. Again, per you, this was their intent even though they never explicitly said that in the Constitution or anywhere else.
The Judicial Power is, ultimately, a check on the Legislative Branch. It protects individual rights against the tyranny of the majority. Just because each branch has its own separate domain does not mean that the branches lack checks upon each other. Congress, conversely, has confirmation authority over the courts, and the power to issue and try articles of impeachment against public officers.
Quote:
Originally Posted by Wudge
Furthermore, you are the one who propositioned the argument that the Founding Fathers drew on the experience of British jurisprudence in crafting the Constitution, yet British jurisprudence did not grant and never has granted the Supreme Court with the power of Constitutional determination. So your previous argument works directly against your new argument.
You cannot assume that the Constitution attempted to ape the British legal system, nor that it attempted to discard it entirely. Judicial interpretation of the law was well-known to that system (the system that presided in the colonies and was mimicked in the states of the new union). But the written Constitution adds a new layer to that system.
Legislative powers are limited by the Constitution, and individual rights are enumerated. Furthermore, and most importantly, the Constitution itself is declared the Supreme Law of the Land. In deciding Cases and Controversies, courts must necessarily ensure that a statute (or other governmental action) does not conflict with the Constitution. If they do not perform that check, then the Constitution is not the Supreme Law of the Land in the courts, which offends Article VI.
Quote:
Originally Posted by Wudge
In this whole regard, what is clear is exactly what the Founding Fathers intended to make explicit and did make explicit when they articulated the Tenth Amendment; i.e., “Thepowers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Think about how unwieldy and illogical the system you propose would be. If judicial review were the exclusive province of State legislatures, executives, and courts, then a Congressional statute could be determined unconstitutional in Georgia, but constitutional in Florida--even if it is, say, a regulation on offshore fishing operations. There would be no process for resolving that conflict, because the legislatures and courts of Georgia and Florida are entirely separate. A federal judiciary prevents that problem, and is an obvious method of preventing each State from giving itself a veto power over any federal law--a process that would make no sense given that each State is represented in the federal legislature.
Judicial power includes, by necessity, the power to interpret the law.
SNIP
The judicial power is vested in the Supreme Court. That power includes interpretation of the law in Cases and Controversies arising under, inter alia, the Constitution. The Constitution is the Supreme Law of the Land.
The enumerated powers apply to the Legislative Branch, as I have mentioned at least three times now. There is also the Executive Power, vested in the President, and the Judicial Power, vested in the Supreme Court. Those powers are separate from the limited Article I, section 8 powers provided to Congress. The Judicial Power is not one of the 18 clauses in Article I, section 8 because it is an Article III power--a power of the judiciary.
The Judicial Power is, ultimately, a check on the Legislative Branch. It protects individual rights against the tyranny of the majority. Just because each branch has its own separate domain does not mean that the branches lack checks upon each other. Congress, conversely, has confirmation authority over the courts, and the power to issue and try articles of impeachment against public officers.
You cannot assume that the Constitution attempted to ape the British legal system, nor that it attempted to discard it entirely. Judicial interpretation of the law was well-known to that system (the system that presided in the colonies and was mimicked in the states of the new union). But the written Constitution adds a new layer to that system.
Legislative powers are limited by the Constitution, and individual rights are enumerated. Furthermore, and most importantly, the Constitution itself is declared the Supreme Law of the Land. In deciding Cases and Controversies, courts must necessarily ensure that a statute (or other governmental action) does not conflict with the Constitution. If they do not perform that check, then the Constitution is not the Supreme Law of the Land in the courts, which offends Article VI.
Think about how unwieldy and illogical the system you propose would be. If judicial review were the exclusive province of State legislatures, executives, and courts, then a Congressional statute could be determined unconstitutional in Georgia, but constitutional in Florida--even if it is, say, a regulation on offshore fishing operations. There would be no process for resolving that conflict, because the legislatures and courts of Georgia and Florida are entirely separate. A federal judiciary prevents that problem, and is an obvious method of preventing each State from giving itself a veto power over any federal law--a process that would make no sense given that each State is represented in the federal legislature.
First, I am not the person who brought and presented the British jurisprudence argument into this discussion. You did. It would bother me too if something I proposed was turned around and rightfully used against my position.
Second, the obligation to "interpret the law" is far, far different than the "power to strike down laws" that had been passed by the legitimately empowered law making body of the United States.
Third, there is absolutely no basis to believe that the Supreme Court has more insight into what is Constitutional than Congress itself. This is especially true in light of the many cases in which the Supreme Court has reversed its own prior rulings as regards what is and is not Constitutional. In other words, if you change players on the Supreme Court, you can easily receive a different answer.
We certainly have seen this truth revealed over and over and over. Obviously, there is a huge dependency on exactly who is doing the ruling and what their personal beliefs are, nothing more and nothing less.
Fourth, I have proposed no system whatsoever. The Supreme Court should have referred the issue of whether or not the Founding Fathers intended to give them the power of Constitutional determination to the States. For it was the States who ratified the Constitution. They certainly would have known their intentions and what they thought they had approved. And one thing is absolutely certain, the States clearly did not insert anything into the Constitution that explicitly gave the Supreme Court the power to strike down laws passed by Congress.
Fifth, I have certainly not assumed the Constitution attempted to "ape" (as you put it) the British system. It was you who twice told me that I should study the British legal system and its principles. Advice that I did not take, because I have some familiarity with it as I've expressed here.
And isn't it ironical that the jurisprudence system you said our Founding Fathers had drawn upon did not permit their Supreme Court to strike down or overturn in an way the laws passed by its law making body and still does not permit that to this day.
Sixth, I don't pretend to know how the States would have resolved the issue had the Supreme Court referred the issue to the States as would have been both prudent and proper given the Tenth Amendment and the fact that is was the States that ratified the Constitution and have the power to amend it. It would be prudent of you to not to pretend to know how the States would have resolved the issue as well.
Seventh, Britain's system of jurisprudence seems to function just fine in spite of the fact that in its entire history, it has never granted the power of Constitutional determination to its Supreme Court. Isn't that amazing! And thanks again for bringing that truth into this discussion.
When we began this discussion, I suspected that your motivating concern was decisions like Roe v. Wade (and, presumably, other decisions in the 'substantive due process' realm--Griswold v. Connecticut, for example). The evidence we have--coming from Article III, Article VI, the Federalist Papers, the arguments of the delegates to the Constitutional Convention, and two centuries of jurisprudence reflect the intent of the Founders as supporting judicial review.
The Constitution is not silent on the matter, but provides 'arising under' jurisdiction to the judiciary and provides that the Comstitution is the 'Supreme Law of the Land.'
Judicial power, at the time of the founding, included the power (and obligation) to interpret the law. Both Article I and the Bill of Rights are limitations on US legislative power--limitations that must be respected by the judicial branch.
If Roe is your concern, then turn your ire to substantive due process. If judicial review is really your concern, then try to get Articles III and VI amended.
I don't know why you but "suspected" what my concern was, for I have posted it elsewhere in this thread, And as regards "Roe", I definitely expressed my concern. But to make matters easy for you, this is what I said.
"I've witnessed a massive decay in our moral and base foundation principles. And the Constitution assuredly defined and was supposed to represent America's guiding principles. However, our Constitution ceased to function as designed and intended long ago.
We, the people, have allowed our Imperial Judiciary (Supreme Court) to usurp the Constitution's Amendment power that the Constitution entrusted to We, the people.
For example, the issue of abortion was decided by Supreme Court in Roe v. Wade, not by America following the Constitution's Amendment process. Rather than follow the Constitution, We, the people permitted nine individuals to act as God and direct America on the most sacred of issues; i.e., life itself. If our Constitution still functioned as designed, then a Constitutional amendment would assuredly have been framed that would have failed to be ratified.
Our values are like leaves on a tree that shift with the winds, but principles are the deep and binding roots that steel us against all forces and that define who we are as individuals and who we are as a society. As part of my "lessons in life", I was taught me that you never, ever compromise, much less abandon at any time, your principles. For if you do, a strong wind will eventually come along and blow you away, and the worst thing is that you will probably never understand why."
(I believe we have come to the point where there is nothing new to discuss.)
First, I am not the person who brought and presented the British jurisprudence argument into this discussion. You did. It would bother me too if something I proposed was turned around and rightfully used against my position.
I am not bothered, but thank you for your concern. I brought up British jurisprudence because it, along with the Federalist papers and the arguments of the delegates to the Constitutional Convention illuminates the meaning of the Constitution itself. I think if you look closely at the similarities and the differences between our systems, you will find that judicial review is the necessary product of our Constitution.
Quote:
Originally Posted by Wudge
Second, the obligation to "interpret the law" is far, far different than the "power to strike down laws" that had been passed by the legitimately empowered law making body of the United States.
What do you think must happen when a statute conflicts with the Constitution? If a court can, then it should interpret the statute so as not to conflict with the Constitution. If the statute is irredeemable, then it must give way to the Constitution. Suppose Congress passes a law allowing the President, in times of emergency, to seize steel factories to produce war material without paying anything to the owners of those factories. This law is a clear violation of the 5th Amendment, which allows takings for public purposes so long as the property owner is paid just compensation. The portion of the law stating that the owners will not receive any payment is patently unconstitutional, strictly violating the express language of the Constitution. If a court were to treat that statute as valid law, then the court would not be treating the Constitution as the Supreme Law of the Land (Article VI).
Quote:
Originally Posted by Wudge
Third, there is absolutely no basis to believe that the Supreme Court has more insight into what is Constitutional than Congress itself. This is especially true in light of the many cases in which the Supreme Court has reversed its own prior rulings as regards what is and is not Constitutional. In other words, if you change players on the Supreme Court, you can easily receive a different answer.
The two bodies have different roles. Congress legislates; the Court adjudicates. There are cases from time to time where the Supreme Court reverses prior judgments. You see that as a lack of insight on the part of the SC. I see that as the SC exercising its judgment on tough cases. The Court takes cases that involve the tough questions of law, and the Justices have different views of interpreting the Constitution, and different approaches to jurisprudence.
Quote:
Originally Posted by Wudge
We certainly have seen this truth revealed over and over and over. Obviously, there is a huge dependency on exactly who is doing the ruling and what their personal beliefs are, nothing more and nothing less.
The Justices are appointed and confirmed, in part on the basis of their judicial philosophy. There are competing ways of looking at jurisprudence, and sometimes they give different answers to the same question. You seem to think that there is something untoward about that fact, but that is how adjudication of questions of law works.
Quote:
Originally Posted by Wudge
Fourth, I have proposed no system whatsoever. The Supreme Court should have referred the issue of whether or not the Founding Fathers intended to give them the power of Constitutional determination to the States. For it was the States who ratified the Constitution. They certainly would have known their intentions and what they thought they had approved. And one thing is absolutely certain, the States clearly did not insert anything into the Constitution that explicitly gave the Supreme Court the power to strike down laws passed by Congress.
You have suggested, in almost every post, that the SC does not have the power of Constitutional determination, and that power is reserved to the States. I disagree with your position on the powers of the judiciary in the Constitution and I think it is contrary to the language of the Constitution. Hamilton, an influential framer, clearly expected judicial review to be part of the judicial power.
Quote:
Originally Posted by Wudge
Fifth, I have certainly not assumed the Constitution attempted to "ape" (as you put it) the British system. It was you who twice told me that I should study the British legal system and its principles. Advice that I did not take, because I have some familiarity with it as I've expressed here.
When you point to the limited review of Acts of Parliament by Britain's judiciary, you provide an example of "aping" that is misplaced. Where Britain has Parliamentary Supremacy, the United States has Constitutional Supremacy (Article VI). Interpretation of law and judicial independence, however, (along with principles like canons of construction) did flow from Britain to the United States.
Quote:
Originally Posted by Wudge
And isn't it ironical that the jurisprudence system you said our Founding Fathers had drawn upon did not permit their Supreme Court to strike down or overturn in an way the laws passed by its law making body and still does not permit that to this day.
It is not ironic, but an example of a departure from British governance. Where British Parliament is Supreme in that system, the Constitution is Supreme in the United States.
Quote:
Originally Posted by Wudge
Sixth, I don't pretend to know how the States would have resolved the issue had the Supreme Court referred the issue to the States as would have been both prudent and proper given the Tenth Amendment and the fact that is was the States that ratified the Constitution and have the power to amend it. It would be prudent of you to not to pretend to know how the States would have resolved the issue as well.
I was posing a hypothetical about a system in which Constitutional review was a power of the States, as you propose is the case by pointing to the 10th.
Quote:
Originally Posted by Wudge
Seventh, Britain's system of jurisprudence seems to function just fine in spite of the fact that in its entire history, it has never granted the power of Constitutional determination to its Supreme Court. Isn't that amazing! And thanks again for bringing that truth into this discussion.
And the American system is functioning fine, in spite of the fact that in its entire history the power of judicial review has been vested in the judiciary.
Quote:
Originally Posted by Wudge
I don't know why you but "suspected" what my concern was, for I have posted it elsewhere in this thread, And as regards "Roe", I definitely expressed my concern. But to make matters easy for you, this is what I said.
"I've witnessed a massive decay in our moral and base foundation principles. And the Constitution assuredly defined and was supposed to represent America's guiding principles. However, our Constitution ceased to function as designed and intended long ago.
We, the people, have allowed our Imperial Judiciary (Supreme Court) to usurp the Constitution's Amendment power that the Constitution entrusted to We, the people.
Our Court sees a right to privacy "emanating from the penumbra" of the Bill of Rights, dating back over 40 years (much longer when you count early Substantive Due Process cases). After more than a generation of new Justices, our Presidents appoint (and Senate confirms) Justices who follow judicial philosophies that have not (completely) overturned Roe v. Wade. Roe, like Griswold v. Connecticut before it, and Lawrence v. Texas after, protects an individual's rights against the tyranny of the majority. Courts, operating without an army and without the power to tax or spend, are here to protect the rights of individuals and resolve disputes.
The Constitution protects us all from deprivations of life, liberty, and property without Due Process (5th & 14th Amendments). The SC finds that the term liberty includes substantive liberty interests, like privacy, which cannot be unduly trampled by the legislative branch. The right to privacy includes the medical privacy right of abortion. It also includes the right to engage in adult, private, consensual sex (my take on Lawrence).
Excuse me for not remembering that you brought up Roe earlier.
Quote:
Originally Posted by Wudge
For example, the issue of abortion was decided by Supreme Court in Roe v. Wade, not by America following the Constitution's Amendment process. Rather than follow the Constitution, We, the people permitted nine individuals to act as God and direct America on the most sacred of issues; i.e., life itself. If our Constitution still functioned as designed, then a Constitutional amendment would assuredly have been framed that would have failed to be ratified.
Our values are like leaves on a tree that shift with the winds, but principles are the deep and binding roots that steel us against all forces and that define who we are as individuals and who we are as a society. As part of my "lessons in life", I was taught me that you never, ever compromise, much less abandon at any time, your principles. For if you do, a strong wind will eventually come along and blow you away, and the worst thing is that you will probably never understand why."
(I believe we have come to the point where there is nothing new to discuss.)
A constitutional amendment could (theoretically) pass to allow Congress or State legislatures to restrict abortions. In the absence of such an amendment, the Constitution protects medical privacy in the view of our judicial system, including the abortion right. In our legal system, the individual's right is deeply rooted in the Constitution--so deep that even overwhelming popular support cannot overcome it. We do not let popular will override individual rights.
The Justices are appointed and confirmed, in part on the basis of their judicial philosophy. There are competing ways of looking at jurisprudence, and sometimes they give different answers to the same question. You seem to think that there is something untoward about that fact, but that is how adjudication of questions of law works.
SNIP
Our Court sees a right to privacy "emanating from the penumbra" of the Bill of Rights.
SNIP
The incredibly convoluted logic behind "Roe" is a perfect example of what an "anything goes society" can somehow justify. All you need are five "anything goes" people in the right place. When life itself is no longer sacred, that defines the world of "anything goes". And when your principles are such that you stand for anything, you stand for nothing.
Do you really believe that the Founding Fathers intended to include in the penumbra of the Bill of Rights "a right to privacy", by which a Mother could legally abort or go to a doctor to have the life inside her legally aborted?
Do you really believe the States would ever have ratified the Constitution had they known what the penumbra allegedly contained and permits?
As in our prior discussion, focus on the "intent" of the Founding Fathers.
To me posting in this thread has been akin to the starfish story that places a focus on making a difference. It goes:
An old man had a habit of early morning walks on the beach. One day, after a storm, he saw a human figure in the distance moving like a dancer. As he came closer he saw that it was a young woman and she was not dancing but was reaching down to the sand, picking up a starfish and very gently throwing them into the ocean.
“Young lady,” he asked, “Why are you throwing starfish into the ocean?”
“The sun is up, and the tide is going out, and if I do not throw them in they will die.”
“But young lady, do you not realize that there are miles and miles of beach and starfish all along it? You cannot possibly make a difference.”
The young woman listened politely, paused and then bent down, picked up another starfish and threw it into the sea, past the breaking waves, saying, “It made a difference for that one.”
[When I tell this story to adult audiences, I stop there. But when I've tell it to children, I always add the rest of the story.]
The old man looked at the young woman inquisitively and thought about what she had done. Inspired, he joined her in throwing starfish back into the sea. Soon others joined, and all the starfish were saved.
Allow me to add a coda.
And when the tide came in all the starfish were swept out to sea again.
The incredibly convoluted logic behind "Roe" is a perfect example of what an "anything goes society" can somehow justify. All you need are five "anything goes" people in the right place. When life itself is no longer sacred, that defines the world of "anything goes". And when your principles are such that you stand for anything, you stand for nothing.
Do you really believe that the Founding Fathers intended to include in the penumbra of the Bill of Rights "a right to privacy", by which a Mother could legally abort or go to a doctor to have the life inside her legally aborted?
Do you really believe the States would ever have ratified the Constitution had they known what the penumbra allegedly contained and permits?
As in our prior discussion, focus on the "intent" of the Founding Fathers.
I think that the Constitution provides that no one shall be deprived of life, liberty, and property without Due Process of law. Liberty is a concept that embraces an uncertain set of rights. A Constitution would be useless if it were so rigid and specific that it could not grow with the people organized under it.
I think it is reasonable to find substantive privacy rights in the concept of liberty. That those rights should include a married couple's right to take birth control (Griswold), control one's child's education (Pierce v. Society of Sisters), enter an interracial marriage (Loving v. Virginia), medical privacy to obtain an abortion (Roe), or the right to private, consensual sex (Lawrence). The States could only manage to ratify a Constitution that recognized slavery as lawful. If we cannot grow from "original intent," then our Constitution is not long for this world.
Individual rights need to be protected from the majority. We have centuries of evidence that unchecked majoritarian impulses will limit individual liberty. Our Constitution, and our courts, can protect that liberty.
More fundamentally, the Justices are not, as you put it, "anything goes people." They are committed to principles of jurisprudence. They interpret laws. Where laws conflict, they resolve the conflict. You think these questions are easy, in reliance on your religious faith. You are free to speak about your position, but you are not free to trample individual rights--even if you are able to successfully pass legislation.
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