[Vicomte13]

It's interesting. One could go back to Marbury, but Marbury was really a hang fire. Yes, the Court found for Marbury, but only technically. As a practical matter, Marbury couldn't take the post. Also, Marbury was really an override of the EXECUTIVE, which is considerably less offensive than an override of CONGRESS.

The next time that the Marbury Doctrine was really invoked full strength...and the first significant case I can think of where Congress itself was overridden, was DRED SCOTT!
And the very next time was...PLESSY!

In other words, it's not really a case of hundreds of cases passing just fine and one or two bad notes. Rather, it's the case that the first couple of times the doctrine of override of CONGRESS was exercised were the two most infamous cases in our history before Roe. (Nobody puts Lochner in the same league, but anyone who thinks FDR was the AntiChrist really is misdirecting his anger. FDR was the Chief Executive of a country in an economic death spiral facing an impending war. He did not have time to be Emily Post. He took action. Things got to that point because the Supreme Court took away the power of democracy, at both the Federal and State level, to regulate half the economy. Lochner really was a disaster. Hate the New Deal? Blame the Supremes, not FDR.)

Judicial override of Executive Orders, a la Marbury, is not so terrible. But Judicial override of the legislature is a more perilous thing. And judicial override of the Constitution itself - Plessy - is worst of all. In Roe, the justices just made up a doctrine out of wholecloth, which is bad. But in Plessy, they outright ignored the latest three Amendments to the Constitution, and sought to judicially reverse the outcome of the Civil War.

The lone dissenter, Justice Harlan, who was incidentally also the only former Southern slaveholder on the Court, understood the Constitution as it had been amended when he wrote that our Constitution is colorblind. And if HE got it, the other justices surely did too. So what they did was intentional, and malicious, and arrogant. And we're still paying the price.

Actually, we're still paying the price of Dred Scott, Plessy, Lochner and Roe. Bad "gifts" that just keep giving!

I think that this current Administation and the Republican establishment understand that we need to put strict constructionists on the court.

Interestingly, I don't think that the right answer to Roe is to overturn it and return the issue to the States. I think that the right result is to read the equal protection and due process clauses of the Constitution, recognize that they apply to all people in the United States, and ban all abortion as a matter of Constitutional law: it is the murder of an innocent baby without due process of law. The Constitution has prohibited that since 1787. It's time for REALLY strict constructionists to read that and apply it. States never had the right to randomly kill their innocent citizens for the convenience of others. And the Supreme Court should say so in overruling Roe and banning all abortion in the US except to save the life of the mother, after medical review, as a matter of equal protection of all Americans.
Saying that killing the innocent is a "states rights" issue is not constitutionally correct.

[tacticalogic]

Things got to that point because the Supreme Court took away the power of democracy, at both the Federal and State level, to regulate half the economy. Lochner really was a disaster. Hate the New Deal? Blame the Supremes, not FDR.)

FDR used the Commerce Clause in a manner far beyond the original intent and nature of that power as granted the federal government by the founders. What FDR did amounted to usurpation, as a matter of convenience.

[tpaine]

You wrote:

In Roe, the justices just made up a doctrine out of wholecloth, which is bad.

In Roe they determined that under the 14ths due process clause, States could not decree early term abortion to be murder. This was not 'bad' for the civil rights of women so charged.

But in Plessy, they outright ignored the latest three Amendments to the Constitution, and sought to judicially reverse the outcome of the Civil War.

You defend the 14th Amendments civil rights principles in Plessy, yet you claim the 14ths due process principle is wrong in Roe.

Could you explain this apparent contradiction in your reasoning?

[UMFan]

I feel like I'm back in law school ... except that you seem to know more than my Constitutional Law profssor.

Gotta disagree as to Marbury. I realize that the Justices ruled for the status quo (while appointing themselves arbiters of all things constitutional). I think I'm right that Marbury was the exegesis of judicial activism -- although I doubt that they knew it at the time. "Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged."

Roe is, of course, bad law crafted by activist judges. Sometimes I wonder what drugs Eisenhower was taking when he appointed them.

The problem I have with Roe is that if it is overturned ... and I'd really like to read the dissents in that one (which would turn O'Connor to the "dark side" forever) ... is that I believe it would actually create a broader abortion right than exists presently.

Throwing the matter back to the states (where we both agree it should be Constitutionally) would, I believe, (i) open the way for the most activist states to increase the scope of the mythical "right to privacy" and (ii) deal the Republican Party a mortal death blow.

In my salad days, I remember hearing the then liberal mantra about "coat hangers in dark alleys." True or not, that, and the Vietnam War, colored all of my youth. While I had no problem with young (and I stress young) ladies burning their bras, I did have a problem with the radicalization of the better half of our society. To me, the risk that we give the Democrats a club to beat us with ("you're going to legislate my womb?" is a comment I remember) is dangerous.

As a practical matter, it would be difficult to overturn Roe -- still agreeing that it is judicial lunacy. What happens when we throw the issue back to Kerryville (sorry, I meant Massachusetts)? They might decide that 1st trimester abortions are not sufficient to protect women. After all (they might reason), why not third trimester abortions .... in fact, why not abortions up to the third grade?

While I am a proponent of strict constructionist judges, I feel that there are only two issues which can derail our victories from 1984 - present (please excuse the indigestion during the Clinton administration) ... abortion and the draft.

Again, thank you for your spectacular post!