Posted on 02/02/2005 9:43:24 PM PST by cpforlife.org
see 34
bump for when my mind is clearer...
philman_36...life's too short for pessimism! C'mon, although I haven't seen many of your posts recently, YOU have been one of the great posters on this forum over the years. We, are why we are all hear, to hammer out differences in order to build a more perfect union, to persue life, liberty and happiness...and have fun while we are doing it.
Bump and ping
Nothing could be further from the truth.
I have had to force newspaper editors to retract editiorials on this aspect of the USSC decision.
The court based its decision on the fact that since religion and science could not decide (up to that time) when life begins, they didn't have to, either.
Roe author Justuce Harry Blackmun wrote: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
It appears the Roe Court (or some of them) actually believed that it wasn't possible to determine when the life of a human being begins. But, by not resolving this factual issue, the Court left unresolved the legal question regarding the rights of an unborn child. So, the need to provide an answer to that question is inescapable.
Cutting edge millenium technology offers proof positive that life begins at conception. The issue of when life begins is no longer a difficult question. Scientific and medical evidence proves, without doubt, that human life begins at the moment of conception and that the child is a complete, separate, unique and irreplaceable human being from the moment of conception throughout gestation.
Since 1973, advances in technology have allowed us to obtain new information about human life on a molecular level. This information resolves all doubts that abortion is the act of killing a human being and that this tiny human experiences pain even during early gestation.
At the time of the Roe v Wade decision, abortion was completely illegal in 33 states except when necessary to save the life of the mother. The remaining 17 states allowed abortion in various circumstances. The most permissive, New York, allowed abortion for any reason up to 24 weeks, though New York did not allow third trimester abortions for "emotional health" as required by the Supreme Court.
In recent years, the abortion right has been extended to partial-birth abortions (sometimes termed infanticide) so that a perfectly viable child in the birth canal, in the process of being born, can be aborted in a most gruesome way, if the mother so chooses.
FemiiNazi idealogy is famously written into the USSC decision.
Thanks to FemiNazis, the unborn child has literally no protection in the womb, and is considered fair game by any and all saline/suction-wielding abortionists.
FemiNazis made sure that Roe v Wade made the "Right to Choose" paramount. The mother's rights over the womb are absolute.....up to and including the ninth month of pregnancy.
Another wrongheaded aspect of Roe v Wade might be remedied with legislation by the Congress certifying that the unborn are "persons."
The USSC decision specfically states that under the equal protection clause of 14th Amendment, the unborn child is not considered a "person" and therefore has no legal rights under US law (14th Excerpt: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof......").
Roe v Wade author Justice Blackmun wrote that "the unborn have never been recognized in the law as persons in the whole sense" and are not entitled to constitutional protection until birth.
Here, Blackmun was informed by tenets of the Jewish faith, and other faiths, who teach that life begins at birth, not in the womb.
However, the official right-to-life position is that life begins at conception.
Pro aborts insist that US laws built on religious beliefs infringe on their constitutional right of freedom from religion, yet they rarely if ever mention that the Roe v Wade concept of life beginning at birth is a religious belief.
Ironically, a decision that was intended to wash religious beliefs from thr law of the land is, in fact, based on someone's religious belief.
Jefferson erred, I posted Article III, sec 2, which clearly States that the SCOTUS has that power. It says the court's power shall extend to all matters arising out of the Constitution... The nullification of laws repugnant to the Constitution is clearly one of those powers. Mr Jefferson states that the court's power is limited to trial matters and sentencing; that is ridiculous.
Re: TJ's oligarchy, "knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots."
The SCOTUS is ineffective at such things. The destruction of Liberty and imposition of tyranny comes, as DeToqueville noted, when the people discover that they can raid the national treasury. The tyrants have a firm grip on the legislature.
Thanks for the bump and ping Badray.........
In defense of my commie conlaw professor, which pains me to no end, he did explain how we were hoodwinked by this decision......
I read enough. He's wrong. The decision is clear. Marbury found the law contradicted the constitution and was therefore void because the constitution is the higher law.
I think the people and special interests have discovered that the national treasury can be raided in this nation, even with its republican features.
And I think its clear that the courts in general, and the SCOTUS in particular have become a mechanism for a sort of leftwing despotism when it comes to social and cultural issues. For them to read, as you put it, the clear language of the Constitution and see it as giving them the power to create all sorts of new and ridiculous rights like abortion on demand, and gay marriage, which cleary have no basis in the Constitution is despicable. For them to read the Establishment Clause as giving them the power to ban prayers before high school football games is ludicrous.
We shouldn't even kid ourselves that they consider the Constitution at all when they do these things. They arrive at a decision beforehand, then try and cloak it with constitutionality. It is a clear case of them implementing radical policies that have been or would be rejected by the proper popular and political authorities. Scalia articulated this much better than I can when he debated Breyer (???) a few weeks ago about the use of international law in US Courts.
So even if you're right about the expressed powers of the Judiciary, it has come to a point where they are acting against intent, and in a way never envisioned by the framers of the Constitution and subsequent Amendments.
As such, when they do things like strike down state abortion laws, warp and distort the Establishment clause into weapon against Judeo-Christian tradition, and soon, strike down marriage laws, then the Executive and Legislative branches would be justified in ignoring and rendering void such decisions.
Of course school-sponsored prayers violate the Establishment Clause. If students want to pray, they can do so individually, or in private groups, but not using public announcement systems. They can't have special rights for their religion, even if they are in the majority.
If Christians were allowed to broadcast before a game, then atheists and luciferians and satanists and hindus should be given equal time. It could be equal as the same amount of time, or as the same amount of time per student (so if there were 100 Christians and 10 atheists, the Christians would get to speak 10 times as long, or on 10 times as many occasions).
You would probably have a problem with a school Satanist club wanting to broadcast their own prayers before a game. But what the HELL gives you the right to claim that Satanism isn't a genuine religion? Because from a Christian perspective, it's not? Sorry, but the Constitution was not written to protect & enshrine Christianity. Certain Christian crybabies want special rights for themselves and then want to suppress everyone else. Maybe you would let the Jews have a prayer, because Jews are "Evangelically Correct" in right-wing Christian circles, but you sure wouldn't want Muslims praying. And if anyone doesn't want to give you these special rights, you whine that they're misinterpreting the Constitution.
You just don't like what the Court is doing, so you want to strip it of its rightful powers.
Remember, SCOTUS banned racial segregation in this way. The 14th Amendment was enacted at a time when racial segregation was normal, and the intent of those who wrote the 14th Amendment, the understanding of Congress and States that passed it, and the understanding of the common man on the street were all in agreement that the 14th Amendment did not ban segregation. SCOTUS used some phony research to claim that segregation was inherently harmful (I say it was phony, because what little research had been done showed that blacks had worse self-image in the North than the South). SCOTUS made a moral decision to end racial segregation, without the backing of any specific laws, only the principles enshrined in the Constitution. It was the right decision, and it moved our country forward. So I am naturally suspicious of people who want to take this power away from the Court.
The 14th was passed, because Congress observed some States violating the rights of a minority of their citizens. It is clear they intended to ban segregation as a small part of the overall acts being committed. The motivation for those violations was race and at the same time they passed the 14th, they passed criminal laws for specific violations. Those laws criminalized both State and private infringement. The SCOTUS at that time, struck down various legislative acts as unconstitutional and rendered the 14th impotent with bogus claims.
"SCOTUS made a moral decision to end racial segregation, without the backing of any specific laws, only the principles enshrined in the Constitution."
Parts of those rulings from the late 1800s were overturned. The 14th was also used, but in a way that maintained the general powers gained by those former rulings. The 14th was written in a general way, that applied the protections to all. In general, the protections contained within the 14th to protect minority citizens of an electoral minority, in the absence of some special recognized status, are still lost.
The questions are whether the Constitution is followed, or not and that rights are protected form infringement, whether from a minority, or the tyrany of a majority. The term "radical" doesn't apply. The popular majoritarian act itself could be "radical", but of couse deemed a sensible act by the majority.
"...it has come to a point where they are acting against intent, and in a way never envisioned by the framers of the Constitution and subsequent Amendments."
Congress and Presidents have done the same.
My take on MvM is that the court basically punted in such a way as to say "Party X should have won, but since circumstances rander case moot, we'll find for Party Y." Thus, party X couldn't squawk (since the court basically found for him, and the case was moot); party Y couldn't squawk (since the court found for him). Thus, nobody could squawk at the court's having established precedent that many people might otherwise have found objectionable if applied to other cases.
Well at least we know where you are coming from; you favor the activism of the Courts and therefore use that to bolster the claim that their activism is Constitutionally justified, because you like what they are doing. In other words, you like what the Courts are doing, so you want to justify its abuse of power.
The First Amendment says that CONGRESS shall make no law respecting the establishment of religion.... You think that legitimately gives the Supreme Court the power to tell some high school in Texas that it can't use the public speaker for a pre-game prayer? Again, such a concept probably never crossed the minds of the Founders, yet you think its right that the Sup Court has decided it gives them the power to meddle in things that have no federal or Constitutional bearing?
And I dont' agree that to let one group say a prayer means you have to let others, unless that state's particular constitution or laws say so. Its none of the federal govt's business, and so long as other groups are not being coerced into accepting the majority faith, then there is no harm. If they don't like it, they should vote with their feet and move. I mean, really, what is it within leftists that they can't tolerate that certain areas of the country hold values far differnt from theirs? Why can't you be happy with fair and legitimate implementations of your far-left ideology in the few states where it could pass muster with the people and their elected leaders? Why do you care what goes on before a highschool football game in Texas? Why do you care that a community wants to put a Nativity scene during Christmas (or 'holidays' if you prefer)? Its not about special rights, its about stopping a minority from exercising veto power over the majority on issues that the Constitution clearly has not earmarked for such anti-majoritarian protection.
And this is the crux of the matter, as you favor the Sup Court abusing its power to make federal policy out of things that clearly belong in the realm of the people and/or states, as the Tenth Amendment says.
And I do think actual intent matters. When the Congress and the state legislatures go through the arduous task of Amending the Constitution, it is with certain principles in mind, and its passage reflects a certain approval from the citizens of the nation. It is not right for the Sup Court to interpret this so broadly beyond the parameters that were explicitly in mind when the nation approved of the Amendment. For them to do so is a sort of defacto amending of the Constittuion w/o acutally bother to go through the process. This is an invitation for judicial ping pong, as what one Court deems to be the law today could be undone by a future one.
I hope you don't buy into the 'evolving, living breathing document' argument, that it must 'adapt to changing values and sentiments', because such a rationale is to give to the Courts powers never intended for it. If values and attitudes have changed, then let the appropriate political authorities put them into law, because at least they will reflect the actual values and changing attitudes of the actual nation as a whole. To leave that job to the Courts is to guarantee the subsitution of the values of a small elite over the values of the people. It is just as Scalia pointed out to Breyer; when they make this argument to justify their actions, they are hiding the fact that they are only adopting the values of elite opinion, certainly not that of the nation at large.
And the SCOTUS hasn't only used the 14th to end segregation. Its also used it to enforce bussing (absurd), and to declare that illegal aliens have a right to a free public education, and that children born to illegals in the US are automatic citizens. But of course you'd like to point to the Courts ending of segregation, because who in polite society could possibly favor segregation, right? But the question of the wrongness of segregation is not the only question. There is also the question of who should correct this wrong. You don't like that the proper political authorities weren't doing what you want, or acting fast enough, so you favor the remaining branch doing it for them even if it is improper for them to do so. Just because they sometimes arrive at a correct moral position does not mean they have the right to make it into law.
And since you place so much faith in the SCOTUS, how do you explain Plessy v Ferguson? It said separate but equal was Constitutionally permissable, so by your way of thinking it was indeed Constitutional until another Court said it wasn't in Brown. Whose to say what the SCOTUS will be thinking about all sorts of issues 50 years from now?
You obviously don't like conservative Christians, or at least don't like that they have dared to object to the actions of a hostile Judiciary, but again what is it about you that compels you to want to impose this hostility nationwide? Why can't you be happy with the Northeast, West Coast, and part of the Midwest? No Muslims, or Buddhists or atheists are going to be persecuted in the South, so don't worry about it, unless of course you equate the possibility of hearing a prayer over a public speaker as persecution.
And finally, lets not limit the discussion to the 14th Amendment. What say you to the hot-button, contentious social issues?
I'm guessing you favor the creation of a right to privacy out of thin air (again, the Tenth Amendment actually provided the proper avenue by which the people and/or states could have such a right if they choose; you're apparent problem is that most states haven't chosen too, and that irks you), and a resulting right to abortion.
I take it you think equal legal status MUST be granted to homosexual couples, and that if the people or legislators arent' enlightened enough to do it then the Courts should, and the fact that such Court behavior was never envisioned by the framers of the language the Courts would base such an outrageous decision on is irrelevant?
I wonder how you'd react if a future Court sides against your values? If for example, it were to overturn Roe, or emphatically reject challenges to marriage laws, would you then accept those decisions as proper, Constitutionally speaking, just because a more conservative SCOTUS said so?
I doubt it.
Just because the Executive and Legislative branches ignore the Constitution does not mean its right for the Judiciary to do so.
In fact, since the Constitution is so often ignored then even if one thinks the Courts do legitimately have the powers this thread was started in order to dispute, then it would back up my view that the Executive and Legislative branches should just ignore the Court decisions it doesn't like. I mean, why follow the Constitution in this regard and not others?
Only when it is necessary, such as to recognize rights to privacy or to desegration or on urgent moral issues.
The Supreme Court did not "create" a right to privacy, it recognized one. Aren't Christians always saying that the gov't doesn't "give" us rights, it merely recognizes the rights God gives us?
The right to desegregation was very important. It put an end to an odious practice that political leadership was ignoring.
Also, the Supreme Court has the power to make moral decisions. In Riggs v. Palme (which was not actually a SCOTUS case) the court makes the decision that a murderer is not entitled to receive the part of the estate from the man he killed. Nothing in the text of the law said that the murderer should not get to inherit, but he was denied on a general moral principle (that you shouldn't benefit from evil criminal activity).
All of these things must be used sparingly, but I would like to see the Court keep these powers. If the Court goes too far over the line, maybe they should be held back, but I'm not really worried about that happening, especially with Bush appointing restrained, Scalia-like justices.
"The Supreme Court did not "create" a right to privacy, it recognized one. "
xm177e2, check this out. This is DIRECTLY FROM ROE:
Rehnquist, Roe V. Wade, 410 U.S. 113 (1973),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113
"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.
The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
In First Things - January 2003: http://www.firstthings.com/ftissues/ft0301/articles/schlueter_bork.html
Constitutional Persons, Robert H. Bork made the following comments about Roe v. Wade:
"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."
In First Things - November 1996: http://www.firstthings.com/ftissues/ft9611/articles/bork.html
Our Judicial Oligarchy
Robert H. Bork commented on the direction the court is taking the nation:
Most members of the Court seem to be gnostics, firmly believing they have access to wisdom denied the rest of us. "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court?" Scalia has asked. "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."
Sorry, but you've only sited dissents against Roe. The justices who approved Roe did not say they were creating a new right, only that they were recognizing that which already exists.
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