Posted on 01/31/2006 12:54:25 PM PST by Jhohanna
SAN FRANCISCO - An appeals court ruled Tuesday that the federal law banning 'partial-birth' abortion is unconstitutional, saying the measure is vague and lacks an exception for cases in which a woman’s health is at stake.
(Excerpt) Read more at msnbc.msn.com ...
Check out Doe v Bolton!
Anything short of a bad hair day qualifies
as a "health exception."
It seems to me, according to my own studies, that Judaeo-Christian beliefs were intertwined with Natural Law to bring a touch of Spiritual Law, from above, for the individual and the society's benefit.
The 'law of the soul' was left to the individual's own responsibility by basing the Constitution in both as a societal guide to protect and assist the individual in their own responsibility.
Free will, but with the advantage of being a society that rewards righteousness but only demands limits on behavior.
Does that make any sense?
I'm not whining... I'm chastizing. Pick a point and defend it, if you want to, but your prickliness is just a distraction from an important topic.
Nowhere did I make any blanket attacks on a group of people other than activist judges - of any stripe.
Sure looked like an attack on "religious" as opposed to "activist" judges to me, seeing as how I'm the one that brought in the activist aspect.
"ok... so when the five Catholic justices overturn the death penalty based not on the constitution, but on their church's position, that will be OK, too?"
If five Catholic justices overturn the death penalty, they will do so based on something along these lines: it is applied capriciously in violation of equal protection under the law, the innocent are executed with alarming regularity and have their lives deprived because a failure of due process, it is cruel and unusual under modern standards. All of those are perfectly valid constitutional positions (whether one agrees with them or not). As federal judges, they aren't going to say "Death penalty is unconstitutional because of Art. 386 of the Code of Canon Law". They will frame their arguments in terms of the Constitution. The reason they will be on that particular side of the argument, probably, will be because of their Catholic moral belief systems, which sees an horrendous harm in executing the innocent, and shies away from it if it can be helped. Nobody is going to write "No death penalty because the Church says no." That's not the thinking.
The steps of the thinking are:
The death penalty is wrong because it sometimes sacrifices the innocent and because it violates the sanctity of human life.
The Constitution requires due process and equal protection, and prohibits cruel and unusual punishments.
The death penalty violates one or two or all three of those protections.
It gets struck down on legal grounds, using legal argumentation.
But the judge cares enough to take the case and to work to overrule the death penalty because of his moral belief system.
Just like anybody else.
With Catholics, as with liberals and economic conservatives, there is a known, qualifiable value system. You know if you're dealing with a committed liberal what his beliefs are on core things. You know the same if you're dealing with a committed free marketeer or Catholic. Men judge based on their value systems. They frame legal opinions to justify their moral opinions.
This shouldn't be alarming. It's how we all operate.
Thanks for the clarification; I was interested in whether or not you thought that was a good thing, and you answered. :)
It's not an oversight at all.
You are committed to a certain legal viewpoint, which you believe represents the highest moral position.
I am committed to a different one.
On the abortion issue, we are probably striving to the same end, but our views of what is appropriate to get there are different. I think abortion is a crime against humanity. I look into the Constitution and see guarantees of equal protection and due process for all people. I think babies are people. So, I think that the Constitution already prohibits abortion, removes it from the sphere of state or federal democracy, and that the judges already have the power - and the responsibility - to protect every citizen by applying the text of the Constitution to override the petty political arguments used to justify infanticide as a "civil rights issue".
I think that if we throw it back to the states, which is what you think the Constitution requires, that we will merely have shifted an inappropriate debate to the state level. It would be akin to deciding that slavery was a state's rights issue. No, the Constitution says no slavery. Slavery is no longer a legitimate issue for democratic discourse at ANY level of government, other than perhaps a narrow effort to amend the Constitution to legalize it again.
I think infanticide is a damn sight worse than slavery, and I think the Constitution ALREADY prohibits it, if it were simply read and applied. I don't think that's judicial activism at all, but even if it is, I don't particularly care because it is the correct outcome.
You think that's a horrible way to look at it.
So we don't agree on means, or perhaps on ultimate ends. My ultimate end is to get everywhere in the US to stop crimes against humanity, and I think that the Constitution and state law need to all trend towards that. If they don't, won't or can't, there's something wrong with the Constitution and the state law structure, because the wrong answer here is so barbaric that it is unacceptable.
Your ultimate end seems to be that the rule of law be respected, even if the rule of law leads to crimes against humanity which the public cannot be persuaded to end.
I fear infanticide more than judicial activism.
You fear the opposite.
There's no meeting of the minds on that.
Still, in the real world we are opposite wings on the same political bird. Clip either the conservative right or the religious right off of the Republican right, and the bird falls out of the air. So we have to hang together to achieve certain common goals, even though we don't agree with the other's hierarchy of values.
That's my hunch as well. I didn't hear it yesterday, but I heard it was overturned in the 2nd Circuit yesterday as well, along with the 9th; that's now four court decisions against it.
The Constitution doesn't have a single moral basis.
It has a legal basis, which is rooted in power.
The morality of the Constitution is a matter of interpretation for each reader or interpreting official. It doesn't come with a compendium that explains "The proper moral understanding of the due process clause is to prevent innocent people from being punished". All that it says is no punishment without due process of law. It's up to the reader to decide why that's valuable, or isn't.
As a legal document, it's about power.
A judge, in particular, has the power of office to interpret what that power means. HE'S going to do that based on his own moral filters (what other tool does he have?).
I suppose if we have to ascribe a moral basis to the Constitution (or the Bible, for that matter) it is this: Might makes right.
When that happens, we are a nation of judges, not laws.
Our laws reflect this country's Judeo-Christian heritage. If the left wants the laws changed, they should go through the process of doing such instead of ignoring laws to judge by their internal value systems. That's how we got Roe.
So everything a Catholic decides on the basis of his faith would be good, everything a Muslim decides would be bad.
As a Protestant, let me scratch my head for awhile over that.
I wrote: "You suggest that it's 'frightening' that judges judge based on their internal value systems"
You responded: "When that happens, we are a nation of judges, not laws.
Our laws reflect this country's Judeo-Christian heritage. If the left wants the laws changed, they should go through the process of doing such instead of ignoring laws to judge by their internal value systems. That's how we got Roe."
You're missing my point.
The law is rarely crystal clear. It has to be interpreted.
And even where it is crystal clear, there is broad discretion at all levels of the government whether to enforce it, or how to enforce it.
Let me give you a very concrete example:
The speed limit as posted is the law.
If you peruse the statute books, you will not find anywhere in the legislated law an "emergency exception".
The law nowhere states "The speed limit is 55, unless you are driving to the hospital with a severely injured person bleeding in your car, in which case you can drive at 90."
And if you flip over to a different page of the statute book, you will not find any law passed by the legislature that says "Policemen have the right to suspend the law as they see fit and authorize people to break the speed limits passed by the legislature."
So, the law is 55. And the law doesn't contain an exception.
The cop stops somebody in the car, speeding at 90 to the hospital with a bleeding kid.
What I am saying is that the cop is going to look at the situation and apply his own value system: bleeding kid, save the life, more important than the speeding offense. He's probably going to get back in his cop car and give the frantic driver a police escort at very high speed right to the hospital, breaking the speed limit all the way.
And at no point is the law going to be respected. He's not going to issue a ticket for the violation when he gets them there. He is going to use his discretion and let the speeder go. Nor is he going to keep the speeder there, with the kid bleeding, while he goes through the proper license checks, etc.
What he's going to do is apply his own internal value system: life privileges this law, ignore the law, and do what's right. And that's what I want him to do, and I expect that any other reasonable person does too.
Of course, by doing this, he is "ignoring laws to judge by [his] internal value systems".
What SHOULD he do, to respect the law?
Well, he should keep the speeder there, issue the ticket, and call an ambulance. And if the ambulance doesn't arrive in time and the kid dies? Well, that's not the cop's problem. He didn't make the speeding law, the legislature did. If it has unintended, nasty consequences that result in the loss of life, well, those are the sorts of thing that shock the conscience enough that (maybe) the legislature will change the law to give cops some discretion.
Now, we really DO live in the first world, not the second. Discretion to enforce, and how to enforce, isn't written into the law. But it is there, because the laws are enforced and judged by men, and the men apply their value systems in that job. We would live in a very Prussian world if they didn't. I myself have no desire to live in Prussia.
I have a copy of the US Constitution right here. Would anyone like to tell me where this issue is addressed?
Uh, yeah, sure. That's how a phrase saying that Congress has the power to regulate commerce between the states has come to justify federal regulation of activities that involve neither commerce nor interstate movement. The language is quite clear. But when you argue that it is not, it opens the door to that kind of nonsense.
"Everything"?
Nope.
I'm talking about preserving human life here.
I am talking about the imperative to use whatever power one has to protect and save the life of an innocent baby.
I'm not talking about speed limits, or tax laws, or prison terms for drug offenders, or anything else that, while important, does not have the Heaven-or-Hell dimensions of infanticide.
As a Protestant you are bound by precisely the same law of God as a Catholic. You're sitting up there in the judicial robe. And the case is plunked down before you: pulling a baby at 8 months out of the womb and puncturing its skull and sucking out its brain: legal or illegal? The law says illegal; the opposition says that the legal precedent says the law is illegal.
So, what do you go on?
Every side has good LEGAL arguments.
Indeed, following PRECEDENT, there is no argument at all for the constitutionality of ANY abortion restriction. The Supreme Court has spoken, over and over and over again, that abortion is legal and can't be restricted. Every attempt at restriction has been shot down by the judges. That's the law. That's the legal system.
To change that, the Constitution must be amended. There's no amendment moving through the Congress or before the states to do that, so nobody is making any pretence at following the law here.
Why, then, do you care about abortion at all?
The law is what it is now, precedent is a binding part of the Common Law, which has been adopted by the United States since before inception. There's a constitutional, legal way to change the law: amend the Constitution. Nobody is even proposing that.
Instead, people are trying to get judges up there who will do it for them.
But then PRETENDING - and that is all that it is, pretence - that conservative judges who are Catholic don't hold the views they do about abortion because of their Catholicism, and getting into high moral dudgeon when it's suggested that judges selected for the high bench BECAUSE of their known (or anticipated) conservatism on social issues, which they have BECAUSE they are Catholics, use their judgment and act like the Catholics they are when the moral issue is presented. Alito was a Catholic before he was a political conservative. He was a Catholic from the cradle, and a practicing one too. That's why he IS a conservative in the first place.
So now we're supposed to pretend that THAT'S not what drives his opinion on abortion, and that it is, instead, some legal abstraction?
I don't lie to myself. And buying that argument would be lying to myself. Alito thinks as he does because he's a Catholic, born and bred. His legal theories have been shaped to give good solid foundations in the context of law to the things he thinks are right and wrong.
Protestants don't think any different than Catholics on this. There isn't any other way TO think. We are not any of us capable of deciding things based on decision trees and reasoning that isn't in our heads to begin with. We judge things based on our filters. We can't just abandon those even if we want to.
What I have been writing is descriptive of the way people act, not normative of the way people ought to act. We can't judge things using a mental template we ain't got. We judge things based on the mental template we do have. And we can't possibly do it any other way, because we don't have available for use in our minds things that aren't there.
Now, I will agree that once people make moral decisions in court or uniform, they then have to justify their decisions to the world by papering them over with legalisms and precedent. But that's not WHY they made the decision. When a Marine sniper in Iraq doesn't pull the trigger because a kid walks between his target and his rifle (even though the Marine could get off two quick shots and be sure to kill the target), he's not doing the most mission-effective thing. He is judging the situation based on his moral belief system. Maybe the bad guy gets away that time, because the Marine decides that it's more important not to murder a kid than it is to get the target. No law in the world can override those mechanisms, and it is preposterous to believe that any can. You can pass laws commanding the Marine to always pull the trigger, but if he's horribly morally averse to gunning down a kid, he still won't do it. He'll say that there wasn't a clear range of fire to be able to take out the target. Other Marines will blow away the kid and the target and live with the pangs of conscience. These discrete differences in moral filters cannot be gotten out of people, and people will always make decisions based on them.
We don't want the cop to let the kid bleed to death in the speeding car just because the law does not have an exception for panicked parents taking kids to the hospital.
We want him to apply the law judiciously to get to a result that is not utterly reprehensible.
The language of the Constitution is quite clear?
Ok, "freedom of the press shall not be infringed".
Magazines are "the press", always have been.
Therefore it is clear: child pornography magazines cannot be suppressed. It is in the Constitution in black and white. There is no "morals exception" in the Constitution.
The language is quite clear.
And if we applied it literally, we would be insane.
"You're sitting up there in the judicial robe. And the case is plunked down before you: pulling a baby at 8 months out of the womb and puncturing its skull and sucking out its brain: legal or illegal? The law says illegal; the opposition says that the legal precedent says the law is illegal."
Going by the law, which I would have to do, the answer is simple. The courts said, to previous iterations of this law, that in order to be constitutional it had to have a health exception. Instead, Congress decided to say there was no reason for a health exception, and passed it again. Why didn't they write a law that would hold up in court? Surely they knew how.
February 1, 2006I haven't found case citations that include names and the like, but from the above, I would conclude that SCOTUS has not granted cert to any of the three cases; and only the 8th Circuit case has a pending cert. petition.
By Henry Weinstein
Times Staff Writer... The unanimous ruling from the 9th Circuit went further than the one from the 2nd Circuit, striking the [federal] law on the grounds that it placed an "undue burden" on a woman's right to an abortion and was unconstitutionally vague.
The 9th Circuit also upheld a lower court finding that the act "created a risk of criminal liability for virtually all abortions performed after the first trimester, which the district court found, placed a substantial obstacle in the path of abortion-seekers."
Although the 2nd Circuit also toppled the federal law, the circuit's Chief Judge John M. Walker made it clear that he took no pleasure in doing so. He said the court was "compelled by a precedent to invalidate a statute that bans a morally repugnant practice."
The 8th Circuit in St. Louis last July became the first court to find the ban constitutionally flawed. The Justice Department already has asked for a Supreme Court review of the 8th Circuit ruling, a request the justices could consider at their next conference Feb. 17. But since the court has its last round of oral arguments for this term scheduled for April, it is possible that the court's consideration of the issue could be put off until the October term.
My impression is that you and walsh attach different meanings to the term "on the calendar."
FWIW, I take the more common view that "cert. granted" is a prerequisite for "being on the calendar."
Except that the conferences are the meetings run by the Chief Justice, where they discuss which cases to take. That's why I'm not so sure it's a done deal, when I see on the SC website that it's "in conference".
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