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Scalia & Althouse on the Judiciary:

In a Saturday talk before the National Italian American Foundation, Justice Scalia questioned the importance of judicial "independence" if judges insist on acting as "policy makers," according to this AP report.(LvHB).

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent." . . .

Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking." . . .

" . . . when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

Meanwhile, Ann Althouse wrote an op-ed for the WSJ suggesting that where you stand on judicial "activism" (or how you define it) is often a function of where you sit. It begins:

Everyone seems to oppose judicial activism these days. If you don't like the role the courts are currently exercising, you find a way to call it "activism" and argue that the change you want would be "restraint." But if the status quo pleases you, you insist that what the judges are doing is not "activism," rather, nothing more than what the law requires. Or you concede the existence of activism -- but contend that changing things will only unleash a new form of far more virulent activism.

There was a time -- not all that long ago -- when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we'd say. Now we all seem to love to wrap ourselves in the mantle of the new fashion. But that fashion comes at the price of candor.

Read the whole thing.

dearieme:
As a foreign admirer of you Constitution, I might define "activism" as occurring when a court rules on an issue on which the Constitution is silent. Like abortion. Or brushing your teeth.
10.22.2006 11:33am
Public_Defender (mail):
"Judicial activism" is political rhetoric, not a legal term of art.

One of the few smart political moves from the left has been to turn that phrase back against conservatives. Liberal use of the term "judicial activism" has blunted the ability of conservatives' to use the phrase without further elaboration.

As a result, when someone complains of "judicial activism," you can no longer assume that means adopting liberal positions. You actually have to listen to the claim.
10.22.2006 11:49am
Jack S. (mail) (www):
I believe Prof. Volokh already hit on this topic several months ago defining the current use of the term 'judicial activism' as 'I don't agree with the result'.
10.22.2006 12:11pm
Ship Erect (mail) (www):
As a foreign admirer of you Constitution, I might define "activism" as occurring when a court rules on an issue on which the Constitution is silent. Like abortion. Or brushing your teeth.

The Constitution is not silent on abortion. It is incorporated as an unenumerated 9th amendment right. The Constitution is, however, one of enumerated powers, and the power to regulate what goes into and out of your body is not one of them.
10.22.2006 12:29pm
Erick:
References to the 9th amendment to defend abortion aren't particularly convincing considering that the left has not tried to apply it to anything else but abortion.

The Constitution is, however, one of enumerated powers, and the power to regulate what goes into and out of your body is not one of them.
Let me know when the democratic party is pushing for abolishing the FDA, DEA, etc.

And most abortion laws are state laws, not federal ones, so its not a relevant point anyway.
10.22.2006 12:48pm
Bpbatista (mail):
Althouse fundamentally misunderstands Scalia's critique. He is not stating that removing abortion to the legislative sphere will solve the political probelm. Rather, he argues that removing the issue to the legislature will send it to its correct political forum which is more likely to lead to a political settlement. Whether such a settlement will be reached or not is irrelevant to his greater point -- the judiciary has no business deciding this political issue.
10.22.2006 1:39pm
lucia (mail) (www):
References to the 9th amendment to defend abortion aren't particularly convincing considering that the left has not tried to apply it to anything else but abortion.


I think abortion should be legal; I'm also not on the left. I'd also like to see the 9th amendment be read as something other than an inkblot.
10.22.2006 1:39pm
Dave Hardy (mail) (www):
The Constitution is not silent on abortion. It is incorporated as an unenumerated 9th amendment right.

I think it's fair to say that unenumerated rights are (as such) matters on which the Constitution is silent. If that document could have listed all rights, there would have been no need for a 9th Amendment.

I think the point was that judicial activitism could be defined as involving a constitutional ruling on a matter on which the Constitution was silent. Your point I suppose would be that this is not unprincipled (at least so far as recognizing a right goes), given the 9th.

I suspect "judicial activism" in common speech has two components: (1) I don't like the result and (2) it is not clearly compelled by the Constitution.

Compare: I don't like the mess that the Court has made of the civil law of defamation, but can see where it finds that freedom of expression requires some constraints upon civil suits. OK.

On the other hand, I cannot for the life of me see how freedom of expression can be consistent with the recent campaign finance decision. When a court has to write a 100+ page opinion to explain why "Congress shall make no law" amounts to "Congress may make this law," a law that happens to lie right at the core of the First Amendment (political expression relating to a candidate during an election), something is quite off.
10.22.2006 1:54pm
liberty (mail) (www):
Abortion and capital punishment are not left out of the constitution if you recognize that the limitation of government was in order to protect the rights enumerated in the declaration - life, liberty and property. Hence I agree with the discussion of the 9th and extend it.

Calling judges activists is a valid critque, however it should be clearly defined as ruling on an issue that is outside the scope of what the constitution delineates, or clearly goes against the nature, boundaries or intents of the constitution. Sadly, it is often used as a catch-all for "I don't like the ruling".
10.22.2006 2:20pm
Andy Freeman (mail):
If the 9th protects a woman's right to abort a fetus that may cause her harm, why doesn't it also protect her right to means which will allow her to protect herself against harms that others would illegally inflict on her.
10.22.2006 2:33pm
jimbino (mail):
"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said.

"... as though it were ..." in the subjunctive mood would be proper English. How is it that Scalia managed to graduate 8th grade, much less high school, college and law school without getting his ear attuned to English grammar? And how in the world will machine translations of such lousy English into any European language manage to make any sense?
10.22.2006 2:47pm
American Psikhushka (mail) (www):
If the 9th protects a woman's right to abort a fetus that may cause her harm, why doesn't it also protect her right to means which will allow her to protect herself against harms that others would illegally inflict on her.

Huh?
10.22.2006 2:52pm
logicnazi (mail) (www):
I'm a strong supporter of legalized abortion. Hell, I support the right of women to abort any time before birth. However, one just can't rectify a constitutional right to abortion with the courts other deciscions.

Yes, the argument that women have a right to determine what happens with their own body seems a good one at first. It seems reasonable to me that the Framers took for granted that the government should not intrude on an individual's deciscions about their body and that this should be regarded as an unenumerated right.

However, you just can't rectify this view on abortion with the court's lack of protection for drug use and prostitution. Remember that the right to an abortion would be empty if it only protected a woman against being charged with a crime for an abortion. Any substantial right to an abortion must also include the right of doctors to provide abortions, the right of medical equitment makers to sell devices needed for abortion, the right of pharmacueticals to sell drugs that safely provide abortions.

Now suppose we take this view that the government doesn't get to tell us what to do with our bodies seriously. Then surely the government can't tell us we can't sell our sexual services nor can it tell us that we can't imbibe drugs. Certainly at the very least taking marijuanna for medical problems would be a constitutional right.

Moreover, a substantive right to abortion means the government can't just deem pregnancy as 'natural' and not needing of treatment thus justifying a ban on abortion in all but medically necessery circumstances. But if so then surely it can't deem my desire to be euphoric or feel high as not needing treatment and thus bar my treatment of it with recreational drugs. The fact that we may think abortion is sometimes a good idea but taking drugs is not is irrelevant since if congress gets to determine this question then the right to abortion would go out the window.

In short you either need to take one horn of the dilema or the other. Either the constitution guarantees a very broad notion of bodily self determiniation and drug laws, prostitution laws, FDA rules prohibiting use of experimental medications, FDA rules preventing the use of unpasturized milk etc.. ought to all be struck down as unconstitutional. Or laws against abortion are constitutional.

I'm personally in the first camp and believe we have a constitutional right to get high. However, if you aren't willing to go that far you just can't defend a substantive (as in not easily gotten around) constitutional protection for abortion.
10.22.2006 2:53pm
Cornellian (mail):
I might define "activism" as occurring when a court rules on an issue on which the Constitution is silent. Like abortion. Or brushing your teeth.

Well the Constitution does protect one against government deprivations of life, liberty and property without due process of law. It's not obviously absurd to suggest that prohibiting a woman from having an abortion is a deprivation of her liberty. One can certainly argue that the meaning of "liberty" or "due process of law" do not restrain the government from prohibiting abortion, but Scalia is simply wrong to suggest you can just look at the plain text of the Constitution and conclude immediately without any doubt, that it has nothing to say about a statute prohibiting abortion.

And since it's Scalia we're talking about, I'd always like to point out that he's not above ignoring original understanding when doing so will get him where he wants to go, such as extending sovereign immunity to private parties (Doyle v Bell Helicopter), 5th Amendment takings to regulatory reductions in value (Lucas v SC Coastal Council) or striking down federal statutes granting broad standing to enforce them (Lucan v Defenders of Wildlife).
10.22.2006 3:03pm
liberty (mail) (www):
logicnazi,

that would only be true if the only argument for/against constitutional protection for abortion was the woman's right to do with her body as she pleases. However, this would be to entirely ignore the right of the fetus.

If the constitution recognizes the fetus as a human being with rights, then there is a strong case to be made that the fetus' right to life trumps the woman's right to freedom over her body; just as my right to life trumps a murderer's right to do with his afternoon as he sees fit.

In this case, one could argue that the constitution protects the freedom of an individual to take drugs, have sex as they see fit but not to have an abortion.
10.22.2006 3:09pm
liberty (mail) (www):
Perhaps i had you backwards anyway. Okay, if you use the pro-abortion argument you set forth then you must say OK to drugs too; the reverse is not true however (you can say OK to drugs but not abortion).
10.22.2006 3:10pm
JunkYardLawDog (mail):
All of the above comments, imho, miss the most important comment made by Scalia. That being if the judiciary insists on making what amount to political policy decisions which are by definition the proper province of the political branches of State Legislatures and Congress and the Executive branches of soverign states and the President, then the more they invite the People and the political branches to restrict, curtail, and infringe upon the Judicial branches independence.

In other words the calls of limited judicial terms, the election of federal judges by the people, and the removal of entire subject areas from consideration by the Judicial branch are increasingly justified by the increase in the number of cases where the judicial branches gather within their province matters more appropriately the province of the other two political branches of government.

He is saying that if the day comes when the judicial branch loses its vaunted independence from the body politic, it will be a result which the judicial branch brought upon themselves by their lack of respect for and deference to the people and the political branches of government.

Says the "Dog"
10.22.2006 4:27pm
Cornellian (mail):
If the constitution recognizes the fetus as a human being with rights, then there is a strong case to be made that the fetus' right to life trumps the woman's right to freedom over her body; just as my right to life trumps a murderer's right to do with his afternoon as he sees fit.


One can make the argument, though it certainly has its weaknesses. The 14th Amendment provides that you have to be born or naturalized in the US to be a citizen, and Article IV privileges and immunities apply only to "citizens." The 14th Amendment right to life liberty and property applies to "persons" so it's an easier argument to make, though a pretty hard sell from an original understanding point of view.

Nor is it obvious that one person's right to liberty is automatically trumped by another person's right to life. It's not obvious that the government has the power to compel you to donate a kidney or to spend nine months hooked up to some kind of blood transfusion machine even if doing so is necessary to save someone else's life (let's say because you're the only matching donor).
10.22.2006 4:32pm
JunkYardLawDog (mail):
Oh, and as a related follow-up to my post above, Liberals love to quote Jefferson, but never seem to remember how he strongly expressed the fear that the founders may not have provided for enough limitations and checks upon the judiciary so that over time the judiciary might try to grab power on an incremental basis to the point they could become defacto dictators and defacto rulers of the country.

OK, I extrapolated a little on what he said in this regard but I believe his expression of fears about the failure of the founders to provide enough checks and balances on the Judicial Branch meant what I said in the first paragraph.

Says the "Dog"
10.22.2006 4:32pm
JunkYardLawDog (mail):
Cornellian, so are you saying the 14th amendment pro abortion the unborn baby has no rights point of view also would have to apply to alien enemy combatants and illegal aliens or not?

Seems to me either that argument leads to no rights for unborn babies and also no rights at all for alien enemy combatants and no rights for illegal aliens? It wouldn't make sense to have one and not the others?

Says the "Dog"
10.22.2006 4:34pm
Cornellian (mail):
In other words the calls of limited judicial terms, the election of federal judges by the people, and the removal of entire subject areas from consideration by the Judicial branch are increasingly justified by the increase in the number of cases where the judicial branches gather within their province matters more appropriately the province of the other two political branches of government.

I have my doubts about whether the number of such cases really is increasing, or can be expected to increase with the appointment of Roberts and Alito to the Court. It seems to me more of an assertion primarily made for fund raising purposes.

Furthermore, making the judiciary subject to the will of the other 2 branches certainly compromises the independence of the judiciary, though I don't see how making federal judges elected would do so. Many state court judges are elected, but that doesn't seem to stop professional anti-judiciary activists from complaining about them too, often with zero basis in reality. I mean really, where's the record of hard core judicial activism in the state judiciaries of Montana or South Dakota that would support the kind of crazy attacks on judicial independence on the ballot in those states?

I'd certainly concede that federal courts have sometimes over-reached, though to a much lesser extent than the other 2 branches. Nevertheless the attacks on the judiciary today are, I repeat, largely a fund raising / get out the vote tactic, not a genuine reaction to such over-reaching.
10.22.2006 4:40pm
Cornellian (mail):
Cornellian, so are you saying the 14th amendment pro abortion the unborn baby has no rights point of view also would have to apply to alien enemy combatants and illegal aliens or not?

Seems to me either that argument leads to no rights for unborn babies and also no rights at all for alien enemy combatants and no rights for illegal aliens? It wouldn't make sense to have one and not the others?


I think it's perfectly possible to hold that an enemy alien is a person for purposes of the 14th Amendment while a pair of cells, the day after its conception, is not a person for purposes of the 14th Amendment and that this position is entirely consistent with the original understanding of "person" in the 14th Amendment.

I don't think that an alien outside the United States can assert Constitutional rights against the US government, but that's because he's 1) an alien and 2) outside the United States, not because he's not a person for purposes of the 14th Amendment.
10.22.2006 4:43pm
JunkYardLawDog (mail):
Cornellian,

A woman has no idea she's pregnant when the unborn baby is just a couple of cells. Not a likely abortion scenario.

How about much more likely partial birth abortion. Is the unborn baby a person under the 14th amendment?


Nevertheless the attacks on the judiciary today are, I repeat, largely a fund raising / get out the vote tactic, not a genuine reaction to such over-reaching.


Well you are entitled to your viewpoint, it just doesn't happen to be correct. Its an effective fund raising point because its so true. Its been true for over 30 years at least maybe all the way back to FDR. Untrue fundraising points don't work over time, except for democrats class warfare stuff, but then those to whom the class warfare arguments appeal aren't exactly the brain trust of the USA.

Says the "Dog"
10.22.2006 5:11pm
Samael (mail):
"If the constitution recognizes the fetus as a human being with rights, then there is a strong case to be made that the fetus' right to life trumps the woman's right to freedom over her body; just as my right to life trumps a murderer's right to do with his afternoon as he sees fit. "

Certainly, but this logic allows no room for rape, incest, and even most health exemptions. You must also prosecute the woman for obtaining an abortion, much the same as if she hired a hitman. If we can get those conditions imposed on the debate, the pro-choice position win quite handily in the legislature.
10.22.2006 5:11pm
Cornellian (mail):
A woman has no idea she's pregnant when the unborn baby is just a couple of cells. Not a likely abortion scenario.

The unlikely scenarios are often the best test of a particular theory. One can't dodge the implications of one's theory by saying a particular fact situation will be uncommon. In any event I'm not so sure that the situation is unlikely to arise. A woman might well decide to check whether she's pregnant shortly after having sex, such as where the sex was non-consensual, or where a condom broke or for some other reason.

How about much more likely partial birth abortion. Is the unborn baby a person under the 14th amendment?

I'm not sure what a "partial birth abortion" is, that's one of those terms dreamed up by one side of the debate in order to garner support, not to illuminate anything. I'll take it to refer to late term abortions generally, and in that case, no - in my view a late term fetus is not a person for purposes of the 14th Amendment and I haven't seen anyone make a convincing case that the original understand of that term in the 14th Amendment includes fetuses, even late term fetuses. That's not to say that a legislature can't prohibit late term abortions. I think a legislature can do so, but not because a fetus is a person for purposes of the 14th Amendment.

If you believe (as you seem to do) that a fetus is a person (or should be considered a person) for purposes of the 14th Amendment, do you draw any distinction between the situation shortly after conception and the situation nearing 9 months? If so, what is the basis for your distinction?
10.22.2006 5:59pm
Cornellian (mail):
" . . . when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

One of the problems with Scalia's argument is that he's confusing two different things. He's saying that when the courts make politically controversial decisions, that places their independence at risk, so presumably this means he thinks the courts shouldn't make politically controversial decisions.

The problem with this argument is that sometimes the application of the Constitution is unavoidably politically controversial. For example, the Bill of Rights contains all kinds of protections for people accused of crimes and the application of those protections is often controversial given how fond most politicians are of being seen to be tough on crime.

Conversely, it's entirely possible for the Court to be quite activist while staying well below the public's radar, simply by being activist on issues that the public typically doesn't take much notice of. Thus, Scalia can invent a doctrine of sovereign immunity that applies to private contractors without putting the Court's independence at risk, not because his position is in accordance with the original understanding of the Constitution (it isn't), but rather because the public doesn't know or care about that issue.

So what Scalia's position amounts to isn't that the Court should stick to an originalist understanding of the Constitution. He's saying the Court should stay away from politically controversial issues in order to protect the Court's independence. That's an argument that the Court should be more political, not less political, because he's saying the Court should be more attuned to what will be politically controversial in order to avoid those issues, rather than deciding how the Constitution applies to a particular case without regard to political controversy.
10.22.2006 6:11pm
fishbane (mail):
Untrue fundraising points don't work over time, except for democrats class warfare stuff [...]

That's the funniest thing I've read all day. Thank you.
10.22.2006 6:12pm
Elais:

FDR. Untrue fundraising points don't work over time, except for democrats class warfare stuff, but then those to whom the class warfare arguments appeal aren't exactly the brain trust of the USA.


Like the republicans are MENSA-level geniuses when it comes to pushing race wars, class wars in their fundrasing efforts? The take any means necessary to widen the gap between rich and poor?
10.22.2006 6:52pm
Native American Lawyer (mail):
"If the constitution recognizes the fetus as a human being with rights, then there is a strong case to be made that the fetus' right to life trumps the woman's right to freedom over her body...."

Every fetus is a distinct human being with his or her own human DNA, heartbeat, brain waves, etc. Because the mother's body ends where the child's body begins, there can be no conflict with the unborn child's right to life endowed by the Creator and a woman's "right to freedom over her body." That two distinct human bodies, with distinct endowed rights, are present when a mother is pregnant with her child is a biological fact that even the most ardent pro-abortionist should have the intellectual honesty to admit.
10.22.2006 7:18pm
ReaderY:
The difficulty with the Court's abortion jurisprudence os that it seems very selectively applied.

It's true that the person has no more "prenatal application" then it has "extraterritorial application", but surely Americans have every bit as much right to dispose of the extraterritorial who pose a threat to their physical or psychological security as they do to dispose of the prenatal. If religious beliefs and notions of traditional morality have no place in government policy on the one issue, surely they shouldn't on the other either.

Yet instead of acting to protect to protect fundamental American rights to extraterritorial freedom of choice, when it comes to proecting our psychological as well as our physical security, the Supreme Court appears to have embraced the same faith-based moralizing that it previously distanced itself from with regard to the issue of abortion, as if morality rather than freedom of choice were an of American value.

In both cases we have threats to our physical and psychological well-being. In both cases, we are exercising rights that cut very essence of our judiciary's power to define what a person is. Yet instead of warmly celebrating our freedom to detain and torture the extraterritorial in the same manner as we celebrate this right with respect to the prenatal -- people who call themselves liberals are heard not merely to question, but obstruct and take back our basic rights and freedoms, our autonomy, our freedom of choice, on the same bible-thumping, moralizing, traditionalist, anti-torture, pro-life, anti-choice grounds that the abortion issue showcased as inconsistent with the very meaning of what it means to be an American.
10.22.2006 7:29pm
liberty (mail) (www):
Cornellian,

1. I said if the court / constitution recognizes a fetus as a person. I did not say that it would or should or does.

2. There is a difference between active and passive taking of life. Actively killing a person (as in the murderer killing me or the woman killing the fetus if that fetus were deemed a person) is quite different from hanging about with a perfectly well functioning kidney which the government might want to redistribute. This is similar to the difference between a right to be able to go buy healthcare and a right to healthcare which implies that doctors have a duty to provide it. The constitution does not provide the latter, it only protects the former.
10.22.2006 7:29pm
liberty (mail) (www):
samael: "Certainly, but this logic allows no room for rape, incest, and even most health exemptions. You must also prosecute the woman for obtaining an abortion, much the same as if she hired a hitman."

As to the first, there are certainly mitigating factors taken into consideration in murder cases -- a woman who kills her abusive husband, for example, tends to get a lot less time. Also defining a fetus to be a person need not be black and white -- even minors are not treated the same as adults, receiving some of the rights but not the full rights of an adult and a citizen. Their life is protected but not their freedom of contract, because of child labor laws and the understanding that they do not have the capacity to agree to the contract (just as they cannot consent to sex). Similarly, granting that a fetus is a human being does not mean that the court would have to consider killing it equal to killing a fully born child; it may only have some of the rights of a human. Hence it would not be equal to hiring a hitman necessarily - but it would be punishable. Removing life support for your ailing mother is not exactly identical to hiring a hitman, though your mother is deemed a human and the act is punishable.

Still a constitutional argument can be made that if it were deemed a human, that should be a large part of the basis on which judgement of the constitutionality of abortion should be made - not just the freedom of the mother.
10.22.2006 7:39pm
Ross Levatter (mail):
I don't follow Scalia's claim that for a judge or justice to rule against law A is to engage in policy. Take abortion as an example. IF the court had ruled straightforwardly that laws against abortion were unconstitutional because performing or requesting an abortion was an unenumerated individual right recognized by the 9th amendment, the court is NOT engaging in policy. They are simply saying to the Congress, if you want THAT policy enacted, begin the process of enacting a Constitutional amendment. In other words, the court would not be fighting against Congress' ends, merely the means by which they approach it.
10.22.2006 8:09pm
JunkYardLawDog (mail):
Cornellian,

You say you don't know what a partial birth abortion is. I say you are too educated for that to be a true statement. Therefore, you are not being honest with yourself or others in the debate.

You don't believe a fully formed 9 month old baby still in utero is a person under the 14th amendement. OK. I don't agree but OK. That however, belies the disingenuosness that you used a two cell example of a fetus as a test case.

As far as I know, there is no pregnancy test that can determine pregnancy before the expiration of several weeks of pregnancy. Taking tests the day after consenual sex is a waste of time, as far as I know.

As for your question about when does 14th Amendment personhood begin, I'm afraid I don't have an opinion on that issue, and I don't think its necessary to resolve that issue to know that there is no FEDERAL right to abortion. The regulation of medical procedures has been the province of State Legislatures since the founding of the country and are reserved to the States under the 9th and 10th Amendments (one of those anyway) as part of the state's police powers.

Its really quite simple. I also note that the original feminists in this country were very much opposed to abortion because they had spent their lives fighting the treatment of women as property and they correctly felt that the treating of unborn babies as property of another was equally offensive to the principles for which they had fought.

Says the "Dog"
10.22.2006 8:53pm
jrose:
logicnaz,

I thought SCOTUS distinguishes abortion from prostitution and drug use because the liberty interest at stake is the right to control your body in reproduction decisions, not the right to control your body in general.
10.22.2006 8:57pm
Samael (mail):
liberty:
"As to the first, there are certainly mitigating factors taken into consideration in murder cases."

Certainly. But note, that these are *mitigating* factors. A crime was still committed, even if we dimish the severity of the punishment.
10.22.2006 8:59pm
JunkYardLawDog (mail):
Elais,

You must be thinking of some people other than Republicans. Republicans aren't in favor of race wars, that's the province of multiculturalists.

The poor in this country are better off than the middle class in most countries. The rich make money because they work on average 20 hours a week or more than the poor do, they take risks the poor don't take, and they don't take risks the poor does take.

Any person can find themselves poor at some point in their lives, but in this country show me a family that fails to build its wealth and accumulation of property from one generation to the next generation, and I'll show you a family that is either well below average in intelligence or is well below average in work ethic or is well below average in the skills of self-discipline and self-sacrifice of the temporary present gain in exchange for a much large payoff in the future or for future generations of that family.

Poverty in the same family generation after generation after generation is the result of poor choices or low intelligence or poor work ethic and culture within that family. There are families of all races that fit this definition (OK maybe not Asians).

American provides the opportunity for all to be rich, that is are only obligation. The results, over successive generations inside each family, are the responsibility not of society or the rich or anyone but those specific family members.

Condi Rice, is the 2nd generation after a poor dirt share croper in the Jim Crow south. From uneducated share croper to Harvard Graduate (I think Harvard) and Secretary of State in just two generations. That's the kind of country this is, and that's why people of color sneak in, line up to come in more than any other nation.

So tell people you know, if you want to do them a real favor, to quit sucking off the Democratic Party tit and get out and make something of themselves and their future family generations.

Says the "Dog"
10.22.2006 9:04pm
ReaderY:
In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Supreme Court said extraterritorial enemy combats had no rights under the Bill of Rights because the word person in that document lacks "extraterritorial application). See also U.S. v. Umberto-Urquidez

In Roe v. Wade, 410 U.S. 113 (1973), the Court said the state lacked a sufficient in the life of a fetus because the word "person" as used in the Bill of Rights lacked "prenatal application".

What's the basis for claiming there's a difference between the two? If the court is operating neutrally rather than imposing its policy preferences, oughtn't to treat them both the same? Why should calling conduct "immoral" be appropriate, or a basis for policy, in one case but not the other? In the absence of personhood, isn't morality just a matter of personal religious belief?
10.22.2006 9:04pm
jrose:
[...] if the judiciary insists on making what amount to political policy decisions which are by definition the proper province of the political branches of State Legislatures and Congress and the Executive branches of soverign states and the President, then the more they invite the People and the political branches to restrict, curtail, and infringe upon the Judicial branches independence.

That's a fair point, but how many court cases don't involve a political policy? It might be that in order to maintain independence, the judiciary might have to go out of business.
10.22.2006 9:05pm
JunkYardLawDog (mail):
Samael,

Not all killings are a crime, nor is there a requirement that all killings in all circumstances should be a crime. So I think your point is a false mirage.

Says the "Dog"
10.22.2006 9:07pm
JunkYardLawDog (mail):
JRose, I didn't say it was easy! (wink).

I think the kinds of "political questions" we are talking about are those where there is no bright line statement in the constitution one way or the other and the matter to be decided is really one traditionally considered a policy matter within the province of the people or legislatures to decide at the ballot box. Policies that are traditionally the province of the ballot box/legislatures should not be changed or mandated by unelected judges.

Or if the above isn't good enough. Its like porn. I know it when I see it.

Gary
10.22.2006 9:12pm
Samael (mail):
"Not all killings are a crime, nor is there a requirement that all killings in all circumstances should be a crime. So I think your point is a false mirage."
As opposed to a true mirage?=)

Why would say, rape or incest be relevent to whether the abortion is a crime? In other circumstances in which killing is not classified as murder, it goes to either the relationship between the two individuals(self-defense, euthanasia, etc) or the state of mind of the killer at the time of the killing. I see no reason why the cause of the pregnancy should have bearing on the criminability of the abortion, which could occur weeks or even months later.

Additionally, your point doesn't broach the subject of why *providing* an abortion should be a crime, while procuring one should not be.
10.22.2006 9:16pm
jrose:
I think the kinds of "political questions" we are talking about are those where there is no bright line statement in the constitution one way or the other

Aren't the bright-line cases far and few between. How many cases would SCOTUS have heard this past term under the bright-line rule?
10.22.2006 9:17pm
jrose:
Under the assumption that a fetus is a 14th-amendment person, wouldn't a state have to overcome strict scrutiny if it chose to prosecute as murderers people who hire doctors to kill their non-fetus children, but to not prosecute people who hire doctors to kill their fetus children?
10.22.2006 9:38pm
dearieme:
Just a foreigner, and a pro-abortion one at that, but I suspect that Wade-Roe was government by judicial putsch. If abortion had been seen as a subject only for state legislatures for more than a century and a half, it beggars belief that, for no reason concerned with advances in technology, science, scholarship or commerce, it could suddenly and legitimately become the business of the Federal Constitution.
10.22.2006 9:54pm
liberty (mail) (www):
Samael: "Certainly. But note, that these are *mitigating* factors. A crime was still committed, even if we dimish the severity of the punishment."

Yes, and if the fetus is a person and the woman kills it, she has committed a crime. This would follow from the logic.
10.22.2006 9:54pm
liberty (mail) (www):
Samael: "Why would say, rape or incest be relevent to whether the abortion is a crime? In other circumstances in which killing is not classified as murder, it goes to either the relationship between the two individuals(self-defense, euthanasia, etc) or the state of mind of the killer at the time of the killing."

? And you don't see that applying in the case of abortion? The relationship between the killer (mother) and the victiom (fetus) is most certainly affected by whether the victim's father raped the killer and got her pregnant with the vistime, don't you think? This makes it somewhat similar to killing an abusive husband except that it is being taken out on the child -- not very defensible except in the case of the child having fewer rights to begin with, for sure, but still relevant. Its also quite similar to euthanasia in the sense that the mother might have a desire to put the child out of its misery before it can suffer; born as a result of rape to a mother that doesn't want you, etc. It is a mitigating circumstance for sure and relevant. Obviously, in addition it is relevant that it would make the mother suffer too not just the child, ie that the killer in this case felt abuse from the victim although it was not intended by the victim and the suffering of the kilelr should be taken into account (again, similar to the situation with an abused wife).

And also clearly it affects the state of mind of the killer. That should have been obvious.

" Additionally, your point doesn't broach the subject of why *providing* an abortion should be a crime, while procuring one should not be."

Procuring one would be and providing one would be a lesser crime.
10.22.2006 10:06pm
liberty (mail) (www):
Oh, and everything I said surely doubly so for incest-rape.
10.22.2006 10:09pm
Duffy Pratt (mail):
Forgive me for being naive, but wouldn't the question of whether a crime had been committed depend somewhat more on the meaning of the state's murder statutes, and not so much on the meaning of the word "person" in the 14th amendment?
10.22.2006 10:13pm
jrose:
wouldn't the question of whether a crime had been committed depend somewhat more on the meaning of the state's murder statutes, and not so much on the meaning of the word "person" in the 14th amendment?

A state's murder statute might not define the killing of a fetus as murder. But if 1) the fetus is a 14th-Amendment person and 2) a state's murder statute defines murder to include hiring a doctor to kill your non-fetus child, then the state's murder statute might be unconstitutional.
10.22.2006 10:26pm
Samael (mail):
Liberty, again, those all come in as mitigating factors in determining the appropriate *punishment*. So, if a woman is impregnated by rape, it would certainly lessen the punishment--possibly by a great deal--but it would do nothing to change the fact that a crime had occurred. This is differentiated from, say, self defense, in which the circumstances don't mitigate the crime, they eliminate it.
10.22.2006 10:26pm
Duffy Pratt (mail):
Not all "persons" are the same under the 14th amendment. When was the last time someone got executed for killing a corporation? Maybe drawing a distinction between a fetus and a non-fetus would hold up, and maybe it wouldn't. But both things being "persons" under the fourteenth amendment, by itself, is not enough to dispose of the matter.
10.22.2006 10:36pm
Cornellian (mail):
As far as I know, there is no pregnancy test that can determine pregnancy before the expiration of several weeks of pregnancy. Taking tests the day after

What is the significance of the fact that current medical technology may not allow for the discovery of a pregnancy in its very early stages? Put another way, if a woman has sex on day 1, then on day 2, without knowing whether she is pregnant, she takes a drug that will end a pregnancy, if a pregnancy exists. Do you see a 14th Amendment problem with that? A policy problem? Does it become a problem if better medical testing becomes available?
10.22.2006 10:38pm
liberty (mail) (www):
Samael,
thats true, but I fail to see your point. It isn't self-defense.
10.22.2006 11:15pm
jrose:
Maybe drawing a distinction between a fetus and a non-fetus would hold up, and maybe it wouldn't. But both things being "persons" under the fourteenth amendment, by itself, is not enough to dispose of the matter.

If life is a fundamental Equal Protection right, any classification would be subject to strict scrutiny.
10.22.2006 11:35pm
Bruce Hayden (mail) (www):
We seem to be straying from what Scalia and Althouse said into the unsolvable problem of abortion.

Here, in Colo., term limits are on the ballot for appeals judges, including, most notably, the Supreme Court. The justification is that they have become overtly political, and because of that, need to be treated as political - with a two year retention vote, and then off after 10 years.

Several things led up to this. First, after the 2000 Census, the two houses were controlled by different parties, and so couldn't come up with a viable reapportionment, as required by the CO constitution and statute. So, the judiciary stepped in, and created their own. Then, the Republicans took the second house in 2002, and finally passed one. The Colo. Supreme Court, still dominated by Democrats after 20+ years of Democratic governors, rejected the plain meaning of the constitution and statutes (that the legislature was to reapportion), and picked their own scheme.

Then, a one sentence ballot initiative on refusing state services to illegals was rejected by the same Supreme Court as comprising multiple issues. Never mind that the legislature routinely forwards initiatives to the ballot that are pages long, without being rejected for this reason.

Maybe the first ruling could be supported based on the fact that elections had already been held under the judicially created reapportionment. But the second was clearly judicial activism, attempting to short circuit the political process - in this case, a choice by the people of the state of Colorado on this issue.

The point is that, regardless of merit, Roe v. Wade is going down as judicial activism, judicial implementation of a policy decision that if left to the political branches (or the people) would have caused less political strife. And because of that, judicial independence has come under questioning. And without judicial independence, why give the judges and justices life tenure - since that is the justification for it in the first place. Rather, courts can possibly be seen as locking in political bias from a past political configuration.

Indeed, if Supreme Court Justices didn't have life tenure, and the Supreme Court hadn't made some arguably political decisions in the fairly recent past, would the confirmation hearings have been nearly as brutal? I would suggest that it was the fear of what relatively young conservative justices with life tenure would do that was driving the dynamic we saw, in particular, with Bork, Thomas, Roberts, and Alito (ok, Bork wasn't that young then, and that is why it was silly to have attacked him with the venom we saw).
10.22.2006 11:40pm
ReaderY:
I think the alien combatant cases provide a serious and significant analogy for the abortion issue. One difficulty with the abortion issue is it seems to present us with a binary: either a fetus is a person, which case we have to treat it equally with other persons in ways which might seem absurd, or it is an object, in which case moral considerations don't apply to it. Perhaps the problem with both the State of Texas's argument, and the Court's analysis, was to claim that there isn't anything in between.

But there is something in between, and an alien combatant is a prime example. An uncaptured alien combatant can lawfully be killed on sight, a status which clearly utterly inconsistant with the king of personhood that connotes a right to life. Yet an enemy combatant is clearly not an object either, not completely immune to moral considerations. When the combatant is helpless and in out power, as when he or she is captured, moral considerations become palpable. We really have a genuine in-between state, neither object nor person.

I believe it was incorrect for the Roe Court to have framed the question in terms of an object-person binary. The dichotomy created is simply a false one. The fact that an enemy combatant can be shot on sight does not mean that government can have no legitimate interest in its life or the manner of its death.

Long before Roe v. Wade was decided, our law of war (the chemical weapons treaty, for example) acted under an assumptuon that there is such a thing as an immoral way to kill a human being, and that government can enforce such moral concepts without creating a right to life. But we simply don't apply the Roe binary in other areas of our life.

Perhaps the Court acted by accident in using identical language to describe fetuses and enemy combatants. But the comparison is far from a superficial one.
10.22.2006 11:43pm
Duffy Pratt (mail):
jrose:

Corporations are persons under the 5th and 14th amendment, but there has never been any case that has held that strict scrutiny applies when making a legislative distinction between a corporation and a human being. The Court would not have to conclude that classifying a fetus as a "person" would require it to be treated either as a corporation or as a "non-utero human."

You are trying too hard to use logic in an area where it simply doesn't work.
10.22.2006 11:57pm
Cornellian (mail):
Here, in Colo., term limits are on the ballot for appeals judges, including, most notably, the Supreme Court. The justification is that they have become overtly political, and because of that, need to be treated as political - with a two year retention vote, and then off after 10 years.

I'm not following the logic - the Colorado states courts are too political, so the solution is to adopt a measure designed to make them even more political? That term limit measure seems more a retaliation against the current members of the court rather than a solution to a problem. Making judges elected will have two effects, neither of them good 1) judges will be more inclined to render politically popular decisions rather than legally correct decisions, and 2) to the extent that judges render political decisions (whatever that may mean), one will no longer be able to criticize those judges on the grounds that they are unelected.

The solution to judges rendering unpopular political decisions is not to set up a system in which judges will render politically popular decisions.
10.23.2006 12:45am
logicnazi (mail) (www):
liberty,

Yes, I agree there are additional reasons one might think it was constitutional to restrict abortion.

My claim is at minimum you can't consistantly support a constitutional right to an abortion without supporting constitutional rights to drugs, prostitution, experimental medicines etc.. etc..
10.23.2006 1:02am
logicnazi (mail) (www):
jrose,

They may have distingushed it because it involves reproductive rights. However, I see no underlying justification for this. At the very least taking medical marijuanna for glaucoma is a bigger liberty interest.

Moreover, I simply don't see how there is more a constitutional right to govern your reproduction than there is to govern your mood or what food you eat.

In order to show that reproduction deserved special treatment under the constutitution I think one would need to show either the framers or english common law gave greater weight to reproductive rights than say the right to take medication or other rights to your own body.

--

As for the claim that a fetus is a 14th ammendment person I think this is pretty clearly disproved by history. My understanding is that it was not until the 20th century that the notion that conception was the start of personhood came into fashion. Before that even religious organizations accepted that life began when the woman 'quickened' which was at the very least 40 days after conception.

Unless you can come up with clear examples of laws from this period which show that a fetus was a person at conception then the most encompassing standard we should even consider is after that time english common law at the time of the revolution allowed for abortion.
10.23.2006 1:19am
JunkYardLawDog (mail):
Cornellian:


while a pair of cells, the day after its conception, is not a person for purposes of the 14th Amendment



JYLD:


A woman has no idea she's pregnant when the unborn baby is just a couple of cells. Not a likely abortion scenario.



Cornellian:


In any event I'm not so sure that the situation is unlikely to arise. A woman might well decide to check whether she's pregnant shortly after having sex, such as where the sex was non-consensual, or where a condom broke or for some other reason.



JYLD:


As far as I know, there is no pregnancy test that can determine pregnancy before the expiration of several weeks of pregnancy. Taking tests the day after consenual sex is a waste of time, as far as I know.



Cornellian:


What is the significance of the fact that current medical technology may not allow for the discovery of a pregnancy in its very early stages?



1. The significance in the context of our exchange above is that your statements about a couple cells not being a person vis-a-vis the abortion debate are disingenous at best and intentional deceptions at worst.

2. What is the significance that current medical technology can't sustain the life of a 3 week week old baby outside the mothers womb to the decision of whether that unborn baby is a person or not or is a living human being or not separate and apart from the mother?

If we aren't concerned with medical technology of today and are able to assume for purposes of testing theories the most far fetched examples, then if we are to discuss a couple a ball of cells in the first few weeks of pregnancy then should we not also test these analogies against what would be the case when medical technology advances to the state (as it surely will in the future) that the few week old unborn baby is viable outside the womb and can easily develop into a muture human adult?

Blackmon's whole analysis is based upon current state of medical technology and survivability outside the womb. Since 1973 that time line continues to get closer and closer to conception as regards survivability outside the womb. Surely over time that will get all the way down to just a week or two after conception. Under Blackmon's analysis the state would have a right to ban abortion in the first couple of weeks. Under Blackmon's analysis that bundle of cells would be potential for life worthy of protection under law.

Using the implication of your most recent question and continually moving goal posts what does the state of medical technology have to do with determining whether an unborn baby may be protected under law. Doesn't the unborn baby have the exact same qualities and human dignity now as they will in the future when medical technology will make a 2 week old unborn baby perfectly survivable outside the womb?


Why hasn't abortion jurisprudence under the Blackmon analysis kept pace with the changes in medical technology. Why hasn't abortion jurisprudence now allow states to ban post 1st trimester unborn babies because they are now becoming survivable??

Says the "Dog"
10.23.2006 1:32am
JunkYardLawDog (mail):
JRose,


Aren't the bright-line cases far and few between.


Yes they are but most cases decided by the court are non-bright line STATUTORY cases inapplicable to the discussion at hand. The kinds of CONSTITUTIONAL struture of government and relationship of the powers between the judiciary, executive, and legislative branches that are matters of policy decided under the guise of constitutional interpretation are pretty few and in all but the recent past fairly far between. It used to be 1 or 2 such cases every few years. Now its gotten recently to 2 or 3 such cases per year. Hardly the bulk of the Supreme Court docket under any circumstances.

Says the "Dog"
10.23.2006 1:43am
MrJustice:
I oppose abortion and reject Roe v. Wade, in addition would reject any attempt by a conservative justice to declare the unborn child a "person" under the 14th Amendment. I would not reject Congress using its power under the 14th Amendment, Section 5 to declare the unborn child a person.

The Constitution is silent on abortion, and at the same time, it is a document of enumerated powers. I believe in the 10th Amendment the powers not granted to the federal government or prohibited by it are reserved to the states or to the people. Let the people and their state governments decide, as an alternative to Congress acting under the 14th Amendment.
10.23.2006 2:34am
Lev:
With respect to the occasional Volokhian grammarian prediliction, a comment upon:


jimbino (mail):
"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said.

"... as though it were ..." in the subjunctive mood would be proper English. How is it that Scalia managed to graduate 8th grade, much less high school, college and law school without getting his ear attuned to English grammar? And how in the world will machine translations of such lousy English into any European language manage to make any sense?


Where I came from the subjunctive mood is used where something is to be called something it is not, or might not be. Thus, to say:


"You talk about independence as though it were unquestionably and unqualifiably a good thing,"


would be saying that independence is not unquestionably and unjustifiably a good thing, or it might not be such a thing, but you are talking as if it were unquestionably and unjustifiably a good thing.

On the other hand, what Scalia actually said:


"You talk about independence as though it is unquestionably and unqualifiably a good thing,"


means:

you are talking as though independence is in fact, unquestionably and unqualifiably a good thing, but maybe it might not be, or is not in fact, unquestionably and unqualifiably a good thing at all.

which is perfectly clear and fine English.
10.23.2006 2:42am
Lev:
So, judicial activism and Roe. The Constitution doesn't say a thing about abortion - the word, the concept is never mentioned.

The Supreme Court activated a federal constitutional right to abortion in Roe - a decision even that ultra extremist rightwing kook justice Ginsberg said was not very good because it preempted a political discussion. A decision that upended years of stare decisistically settled case and statutory law.

Now, the abortion supporters...pro-choice movement...people of a certain predilection claim, by stare decisis, that Roe may not be itself upended, because it is settled law and upending it would be...judicial activism. Oh, even SCt justices said that, such as the ultra extremist kook leftwinger Roberts.

And the Supreme Court is not involved in making political decisions properly the part of the other branches of government? Ha.

And then we have, dare I say it, Bush v Gore. Wherein those persons and justices who routinely engage in and advocate judicial activism wanted, pleaded, begged, ordered, the SCt to butt out because to insert itself where the Constitution does not give it a role would be judicial activism, a very bad thing. And, not to be outdone, those persons and justices who routinely engaged against and advocated against judicial activism want, pleaded, begged, ordered, the SCt to butt in , even though the Constitution does not give it a role, because not to do so would be, like, you know, a very bad thing.

And the Supreme Court is not involved in making political decisions properly the part of the other branches of government? Ha.

I advocate term limits. Traditionally I have advocated, age 75 or 25 years on the SCt and they are out, mandatory retirement.

But a better system that I heard was a routine rollover of specific terms. No justice spends more than 18 years on the court; each position is specifically identified and, by lot, the end date of the current justices' terms are established - 2, 4, 6, 8, 10, 12, 14, 16, 18 years from the date of the drawing; a judge dies before the end of his term, he is replaced by a judge who serves only the remainder of his term, cf, is that the bluebook abrreviation, the US Senate.

That way, there is regular routine turnover. We don't have superannuated ideologues hanging on for the party they prefer to win the presidency. There is less chance of the Douglas and Marshall problems because, they are o u t.

Yeah an amendment, yeah it will never happen during a life in being plus 25 years until the SCt screws things up so badly they will never get unscrewed.
10.23.2006 3:05am
Roger Schlafly (www):
Why hasn't abortion jurisprudence under the Blackman analysis kept pace with the changes in medical technology. Why hasn't abortion jurisprudence now allow states to ban post 1st trimester unborn babies because they are now becoming survivable??
Because Roe v Wade allows abortion anytime during the whole 9 months of pregnancy, provided only that a physician is willing to do it. It just does not matter whether the fetus is viable or not.
10.23.2006 4:31am
Hans Gruber:
"I'm not following the logic - the Colorado states courts are too political, so the solution is to adopt a measure designed to make them even more political? That term limit measure seems more a retaliation against the current members of the court rather than a solution to a problem. Making judges elected will have two effects, neither of them good 1) judges will be more inclined to render politically popular decisions rather than legally correct decisions, and 2) to the extent that judges render political decisions (whatever that may mean), one will no longer be able to criticize those judges on the grounds that they are unelected."

Why is this difficult to understand? People think courts have abused their power, so they propose limiting that power by democratic means. If courts are going to act like a legislature, well, then maybe they ought to resemble a legislature as well. Of course that's not the only possible solution, but retaining the system of judicial independence requires a change in the legal culture. And how is a reformer supposed to do that exactly?

"The solution to judges rendering unpopular political decisions is not to set up a system in which judges will render politically popular decisions."

Assuming oen can solve the problem of legitimacy (the decisions are not properly based upon the law), then you are correct. But what if that is not feasible? Who do we favor, the people or the philosopher kings? A system where judges are more democratically contrained may not be ideal, but it may in fact be preferrable to a court committed to advancing its own agenda rather than interpreting and enforcing the law.
10.23.2006 7:25am
jrose:
Corporations are persons under the 5th and 14th amendment, but there has never been any case that has held that strict scrutiny applies when making a legislative distinction between a corporation and a human being.

Can you provide the precedents to support corporations being persons? Assuming a case has been decided in which a law treated corporations differently than humans, I suspect strict scrutiny did not apply because no fundamental right was at stake. The same would hold for non-utero humans versus fetuses.

However, a fundamental right might be at stake if the law prosecutes the killers of non-utero humans differently than the killers of fetuses. Strict scrutiny applies to classifications which burden fundamental rights no matter what the classification (incoluding corporations).
10.23.2006 9:06am
Duffy Pratt (mail):
jrose

I would have thought this stuff is too well settled to require citations. Corporations are persons, and have due process rights.

Munn v. Illinois, 94 U.S. 113 (1877)
Sinking Fund Cases, 99 U.S. 700, 718 -19 (1879)

Restrictions on campaign contributions are different for corporations and for indiduals. Campaign contributions are speech, which is a fundamental right. The different restrictions have been upheld. Do I really need to cite these precendents too?
10.23.2006 9:48am
jrose:
most cases decided by the court are non-bright line STATUTORY cases inapplicable to the discussion at hand

That is a good point except Scalia complained about the Court getting involved in suicide which was decided based on statutory interpretation.

Now its gotten recently to 2 or 3 such [constitutional] cases per year.

I take it you think SCOTUS should have butted out in all these cases including affirmative action, takings and elections?
10.23.2006 9:51am
jrose:
Restrictions on campaign contributions are different for corporations and for indiduals. Campaign contributions are speech, which is a fundamental right. The different restrictions have been upheld. Do I really need to cite these precendents too?

Yes, I would be most interested in reading how SCOTUS justified the differing contribution rules for corporations versus individuals.
10.23.2006 10:03am
Houston Lawyer:
If the 9th Amendment is so right and powerful, why don't I have a 9th Amendment right to keep and bear arms?
10.23.2006 11:44am
jimbino (mail):
Lev,

Check out this from Wikipedia, if you don't have access to a grammar book, and pass the info on to Scalia if you get a chance:

To express a hypothesis

The past subjunctive is used after the conjunction if in a contrary-to-fact protasis. For example:

* If I were a millionaire, I would buy a sports car.
* If he had a car with him, he could drive us there.
* If I were a rich man...

In the same vein, the past subjunctive is used following the conjunctions as if and as though to express a contrary-to-fact situation that reality is supposed to resemble:

* She looked as though she were going to kill him, but after glaring for a bit, she just stormed off.
10.23.2006 11:52am
Wombat:
Personally, I would suggest this system for the Supreme Court:
Each year, One seat on the supreme court is up for reappointment (the seats are simply assigned a numerical order at the beginning of this system and the reappointment process simply cycles through that order). The process is the same, appointment by the President with confirmation by the Senate. The person serves a term of 9 years. In the case of a out-of-cycle replacement (death, illness, retirement), the substitute only serves the remainder of that seat's time to reappointment. Any given individual can only serve for two terms (so a maximum of 18 years to a minimum of 9 years and 1 day, if the person was assigned as a replacement Justice the day before that seat's term was up.) Those terms need not be consecutive.

Pros: A given president will only naturally deal with a given seat at most once during his presidency. With the 9 year Justice cycle, he will never deal with all the seats during his term. With at most 18 years of service, there is far less drive to "get them young". With at most 9 years before the seat comes up for reappointment, there is less time lag between the leaning of the other two branches of government and the court (then again, that is because I feel if all branches of government suffered from teeter-tottering party switchovers, the constant re-legalizing would make the people more fond of a reasonable center position, so it could just be my idealism...)

Cons: You would need to also change the Constitution so that the court only met with a full "roster", as it were, or else the drive to block confirmations would reach ludicrous heights: Imagine the court, due to 2 deaths, is now 4Dem-leaning &3 Rep-leaning - minority Senate Dems would have every reason in the world to block the appointments of the Repub Pres and Repub majority Senate. Appointing Chief Justice in this system is also thorny: Does the Pres reappoint which of the already appointed Nine is Chief after every yearly confirmation cycle? Etc.

But as far as the Original Post goes, I think the problem is obvious, albeit one I see mentioned infrequently:

Amendments are broken.

Instead of the proper and designed balance of legislative power:
Legislature and Pres pass laws.
Court rules yes/no on their constitutionality.
The People amend the constitution to reverse the above, if needed.

we have the current system, where because action on the third level is nearly impossible to achieve, the system now hinges on what arcane if not outright nonexistent constitutional logic is needed to get the result the majority of the Court wants.
10.23.2006 12:24pm
JunkYardLawDog (mail):
JRose,

On affirmative race discrimination on the basis of race in higher education, I think they should have followed the established precedent and stare decisis instead of creating a new 25 year window where they promise to look the other way on unconstitutional race discrimination in education.

On Takings, I think they got lost looking with a micro level at prior decisions and made what appeared to them from that micro view of things to be a merely logical next step in the process. What they completely missed was the macro level view that they have logically gone step by step over years to a place that has completely removed and stricken the words public use from the constitution.

Several of these justices expressed quite a bit of surprise at the outrage over their decision, which falls perfectly in line with their myopic and unrealistic view of Kelo and the prior case law. Had they looked at where in the forest their logical myopic steps had taken them they would have realized (as did Scalia in his dissent) that they had wondered completely into bizzaro world.

Not sure what you are referring to on elections unless its the 2000 Bush v Gore decision which was 7-2 that the order of the Florida Supreme Court was unconstitutional. They were forced to get involved because the Florida Supreme Court kept ignoring the law and rusing in to enact personal policy of the Judges. Bush v Gore didn't overturn or ignore an act of Congress or ignore 100 years of prior precedent. Not a remarkable case at all, except for its failure to rule on the most applicable grounds to why what the Florida Supreme Court kept trying to do was improper. Those were the grounds where the decision lays out all the very sound reasons why the Supreme Court of Florida's attempts to change the election rules in Florida after the election violated both the U.S. constitution and long standing congressional enabling legislation on the matter.

On Suicide cases I think justice Scalia must have been referring to how the federal judiciary stuck their thumb in the eye of congress by bending over backwards to create a way to ignore that legislation and its intended effects. While Statutory its a special case kind of statutory interpretation.


Says the "Dog"
10.23.2006 12:34pm
JunkYardLawDog (mail):
Roger,


Because Roe v Wade allows abortion anytime during the whole 9 months of pregnancy, provided only that a physician is willing to do it. It just does not matter whether the fetus is viable or not.


I agree that's how subsequent decisions from the Supreme Court have gone, but the Blackmon Analysis in Roe v Wade said viability was the magic wand to determine when the States could regulate or prescribe abortion. Roe, itself and not as later expanced in other cases under the Blackmon reasoning was that abortions in last trimester could be completely banned more or less and second trimester abortions could be regulated some and 1st trimester had to be hands off.

Blacmon's analysis as I recall (doing all this from long ago memory) was that viability was the reason for making these trimester demarcations. Therefore, as viability as moved closer to the time of conception and will undoubtedly reach within a few weeks of conception some day, the argument arises why under Blackmon's reasoning shouldn't the period of time when States can outright ban abortion be expanded and the period of time when States can regulate abortion be expanded?

Says the "Dog"
10.23.2006 12:46pm
Cornellian (mail):
we have the current system, where because action on the third level is nearly impossible to achieve, the system now hinges on what arcane if not outright nonexistent constitutional logic is needed to get the result the majority of the Court wants.

Perhaps constitutional amendments are very difficult to enact for a good reason? Are they any more difficult now than they ever were, other than the fact that more states = more states that have to ratify?

Also, you don't mention the other, and more obvious approach to dealing with bad court decisions - appoint different judges. That's faster and easier than amending the Constitution. Republicans have been campaigning on that for a while now, they've got some votes out of doing so, and most recently they got Roberts and Alito on the Supreme Court. Seems to me the system is working as intended. It's not an instant reversal of any Supreme Court decision you don't like but as far as the political branches go, instant reaction usually means overreaction, so the time it takes to go this route doesn't seem like a bad thing to me.
10.23.2006 1:33pm
Cornellian (mail):
Because Roe v Wade allows abortion anytime during the whole 9 months of pregnancy, provided only that a physician is willing to do it. It just does not matter whether the fetus is viable or not.

Cite the language from Roe v Wade that says the state cannot prevent a woman 8 months pregnant from having an abortion where that woman simply wishes to have an abortion without any reason based on her own health for doing so.
10.23.2006 1:35pm
Gene Vilensky (mail) (www):
Re: the discussion of the 9th amendment. Scalia doesn't believe in it. Was it he or Bork who likened it to an inkblot? I think Prof. Barnett has a great article on Scalia's bad interpretation of the 9th. Rep. Bingham who helped draft the 14th Amendment certainly thought the 9th to be incorporated. But, apparently, there's voices from the time who disagreed.

I think that there is some controversy among law scholars about whether the 9th is incorporated or not. It is supposedly taught to be a "rule of construction" whatever that means. Maybe I'm just attacking the question from the angle of a mathematician, and I should just throw logic out the window and behave like the typical law professor instead.
10.23.2006 2:18pm
jrose:
Dog,

In other words, it isn't judicial activism or an improper delving into political policy decisions that risk the Court's independence when you think the decision is a sound one. And that is precisely Althouse's point.

I wonder how many cases are like the suicide case where one side or the other believe the Court is usurping the elected branches through an absurd statutory interpretation. If we take away those cases and the constitutional cases, what is left?
10.23.2006 3:43pm
logicnazi (mail) (www):
To clarify my position while I do think that the original blackmun ruling was incompatible with the court's other rulings (drugs, FDA etc..) I do think this ruling ought to be upheld on stare decicis.

The reasons are pretty clear.

Roe v. Wade is a deciscion that has been heavily relied on by millions of people in some of the most important aspects of their lives. Whether you like it or not many women have made deciscions about promiscuity, marriage, etc.. on the assurance that they could get an abortion if necessary.

The deciscion is easily isolated from other constitutional questions. While I think that nothing about the constitution justifies treating reproductive control over one's body as more important than other sorts of control over one's body this premise does underlying the court's reasoning and prevents the Roe v. Wade deciscion from creeping into cases about drugs, FDA etc.. Unlike say the court's deciscion in Raich this is a result that can be easily isolated without creating a huge legal mess.

The deciscion is not obviously and uncontroversially unjust or harmful.

In short if you believe in stare decicis at all it seems hard to objectively argue that Roe v. Wade isn't an appropriate time to apply it. I think any honest opponent of Roe v. Wade has to admit that the reason they think Roe v. Wade ought not to be protected by Stare decicis is because of the harm of abortion (kills the unborn) or similar deeply felt belief that allowing abortion is wrong. Yet this means that you are asking the court to once again enter into a controversial area and make a moral deciscion to justify overturning Roe v. Wade.

If you believe that the court shouldn't have been looking at the moral harm (at least in many people's minds) of the women being denied abortion when it decided Roe v. Wade then it isn't fair to ask them to look at the moral harm of abortion to justify overturning Roe v. Wade.

In other words suppose instead of guaranteeing a right to abortion the Supreme court had guaranteed an absolute right to experimental medication, to using drugs shown to alleviate your medical condition or to something totally random that also had the properties I listed above. Then unless you believe stare decisis shouldn't hold in any of these cases you have to accept it should apply in the abortion case.

--

As an aside this entire worry that the judiciary is intruding on political matters seems a little silly to me. The judiciary is a political branch. It is not some crazy heriditary dictatorship, it is a group of judges appointed by our elected leaders. In fact in some sense the choice of SC judges is more democratic than the senate where small states are given proportionatly more votes.

The criticism the judiciary comes in for is actually remarkably little compared to the protests about other branches of government. Yes the judiciary needs to be more restrained than congress or the president since they have a more narrowly defined role and aren't up for reelection as frequently but they probably do their job better than the other two branches of government.

Ultimately the problem with Roe v. Wade wasn't that it was political or 'activist' but that it just wasn't based on a sound legal theory of any sort. Sometimes our political representatives make bad deciscions but if anything the SC judges do so less than our other political branches.
10.23.2006 3:50pm
Cornellian (mail):
It is not some crazy heriditary dictatorship, it is a group of judges appointed by our elected leaders. In fact in some sense the choice of SC judges is more democratic than the senate where small states are given proportionatly more votes.

The Senate wasn't originally elected either. Even today, the President is elected only by statute, not by any constitutional requirement. Many state court judges are elected. Thus, complaining about "unelected" judges does not, in itself, establish anything.
10.23.2006 4:21pm
markm (mail):
"A woman has no idea she's pregnant when the unborn baby is just a couple of cells. Not a likely abortion scenario." What is the "morning after" pill, but a mix of drugs designed to kill that couple of cells if it happens to exist? There's been a big controversy over that recently - it seems like some people consider that to be close enough to an abortion to want to keep it them prescription only. There's no medical reason for that; what they want is, considering how long it usually takes to get a doctor's appointment and a prescription, to keep most women from getting the pill while it still has a chance of working.
10.23.2006 5:19pm
Hans Gruber:
"Cite the language from Roe v Wade that says the state cannot prevent a woman 8 months pregnant from having an abortion where that woman simply wishes to have an abortion without any reason based on her own health for doing so."

Implicit in finding a "physician willing to do it" is that the physician will say it's medically necessary to preserve or promote the physical or mental well being of the mother. Being that any pregnancy, even with a healthy mother, represents some risk, how could an abortion not be medically defensible if we are to ignore the moral status of the fetus?

What he said is entirely correct. Yes, abortions in the third trimester are only constititionally protected if they are therapeutic, but the bar for medical justifiability is set absymally low. The practical effect, then, is that any woman may choose to terminate her pregnancy if she finds a doctor willing to do it. The pyschological trauma of having an unwanted child may, in a doctor's judgment, be a sufficient medical reason. Or the general risk of pregnancy even if the mother is completely healthy.
10.23.2006 5:31pm
Hans Gruber:
"It is supposedly taught to be a "rule of construction" whatever that means."

It means it's an inkblot. Bork was right. See, one objection to including the Bill of Rights was that the new federal government would not respect its limited role, that it would use the enumerated protections to expand its power in unconstitutional ways. The 9th Amendment is really a restatement of federalism principles already contained in the constitution. Woudn't it be perverse to transform an amendment which protected state power into one that limited it? Incorporation of the 9th Amendment is absurd.
10.23.2006 6:00pm
JunkYardLawDog (mail):
Jrose


In other words, it isn't judicial activism or an improper delving into political policy decisions that risk the Court's independence when you think the decision is a sound one. And that is precisely Althouse's point.



I don't agree with this characterization. I think one can tell when judges are legislating policy matters or substituting their own policy analysis for that of the elected branches, and I don't think it is tied to whether one agrees with the result or not.

I understand what may lead some to conclude as you and Althouse, but I think you are wrong in your conclusion. If I believed that conclusion were correct then I would want Supreme Court justices elected ever 6 years in party affiliated contested national elections.

Says the "Dog"
10.23.2006 6:33pm
jrose:
I think one can tell when judges are legislating policy matters or substituting their own policy analysis for that of the elected branches

How?

and I don't think it is tied to whether one agrees with the result or not.

This is an empirically answerable question. How often do people agree (disagree) with the Court when the decision aligns (conflicts) versus conflicts (aligns) with their policy preference?
10.23.2006 7:40pm
Cornellian (mail):
This is an empirically answerable question. How often do people agree (disagree) with the Court when the decision aligns (conflicts) versus conflicts (aligns) with their policy preference?

It happens now and again, at least with the intellectually honest, but it's not as visible as it's much more fun to spend time criticizing the decisions that you disagree with and that also conflict with your policy preferences.
10.23.2006 10:41pm
Lev:
jimbino

You should have paid attention to what I wrote. I don't need to go to The Ultimate Accurate Resource On Everything, because what you copied, is what I wrote.

You should have paid attention to what I wrote, because I hypothesized that


To express a hypothesis


Scalia was not expressing a hypothesis. He was expressing a fact.


The past subjunctive is used after the conjunction if in a contrary-to-fact protasis.


Scalia was not using a contrary to fact protasis. Scalia was expressing a fact.


In the same vein, the past subjunctive is used following the conjunctions as if and as though to express a contrary-to-fact situation that reality is supposed to resemble:


Scalia was not expressing a contrary to fact situation that reality is supposed to resemble. Scalia was expressing a fact that was reality.

If you were able to read for comprehension, you would have understood these things. Alas.
10.24.2006 12:06am
Lev:
Amendments are broken.


Instead of the proper and designed balance of legislative power:
Legislature and Pres pass laws.
Court rules yes/no on their constitutionality.
The People amend the constitution to reverse the above, if needed.

we have the current system, where because action on the third level is nearly impossible to achieve, the system now hinges on what arcane if not outright nonexistent constitutional logic is needed to get the result the majority of the Court wants.


I think it is a case in which the Founding Fathers missed a check/balance. Thusly:

Legislative

Each House is a check on the other in that both must agree or legislation is not passed. The President is a check on the Congress, if the President does not agree with the Congress he vetos, and absent a supermajority override, the legislation is ineffective. The Judiciary is a check on the Congress in that even if a veto is overridden, if the legislation is not to the liking of the courts, it is declared unconstitutional and is a nullity.

Executive

The Congress is a check on the Executive in three ways: 1. it has the spending power, if it does not authorized spending for something the Executive wishes, the something may not be done, 2. Congress may pass, over a veto, legislation ennabling or unennabling objectionable Executive action, 3. if the President is annoying enough, Congress may impeach, convict, and remove him from office. The Judiciary is a check on the Executive by virture of its power to issue injunctions, both prohibitive and executory, and may declare Executive acts unconstitutional in response to litigation.

What are the checks on the Judiciary? If a judge is enough of a crook, the Congress may impeach, convict, and remove him from office. If the judiciary as a whole becomes too annoying in some particular respect. Congress may try to restrict the jurisdiction of the courts - in theory, because in a recent case Congress appeared to say the courts had no jurisiction but the SCt said that when Congress said the courts had no jurisdiction it meant the courts did have jurisdiction. Congress may abolish the entire federal judiciary leaving only the SCt - one wonders if that would be ruled unconstitutional. Except for impeachment/conviction, these are all vague and general things.

What about specific actions? Congress and the courts can address specific objectionable acts by the Executive. The Executive and the Courts can address specific objectionable action by the Congress.

But what about specific objectionable decisions by the SCt? If the decision is about statutory interpretation, Congress and the President can pass and sign a new law to correct the problem.

But what about Constitutional decisions? What is the check on bad SCt constitutional decisions? If Congress passes a constitutionally bad statute, the President can veto it and the courts can declare it unconstitutional and void. If the Executive takes an unconstitional act, the Congress can specifically prohibit funding for it and retract any ennabling legislation for it, and the courts can prohibit the act by injunction.

What about a SCt decision? There is no remedy other than amending the Constitution itself? This is not parallel to the other checks and balances, all of which can be used without amending the Constitution.

It seems to me, for proper parallel construction of checks and balances, the President and the Congress ought to be able to void a SCt decision they disagree with. Supermajority in Congress, as in overriding a veto, and Presidential signature on it.

After all, there are supposed to be three coequal branches, each with the responsibility of acting constitutionally.
10.24.2006 12:28am
Cornellian (mail):
They were forced to get involved because the Florida Supreme Court kept ignoring the law and rusing in to enact personal policy of the Judges.

Ah yes, the often overlooked "state court rushing to enact personal policy" grant of jurisdiction to SCOTUS, right there in Article III.
10.24.2006 3:41am
Hans Gruber:
Cornellian,

Article II of the Constitution explicitly provides that it is the legislature of each state which must designate how electors for the president and vice president are selected. It is therefore a federal question when the legislature's will is clearly ignored, as it was by the Florida Supreme Court. Remember, the Florida Supreme Court essentially ignored the applicable statutes in order to serve what they thought a higher purpose--that every vote count. In doing so they quite arguably violated the US Constitution. Just see the Rehnquist concurrence in Bush v. Gore.
10.24.2006 5:14am
JunkYardLawDog (mail):
JRose asks How?

You know it when you see it. Its usually a 5-4 decision (maybe sometimes 6-3) almost never would it be a 9-0 decision. The judicial activist opinions of substantial policy matters that exceed the proper jurisdiction of the court are often many many pages longer than normal; taking many twists and turns of logic and non-common sense to justify the discovery of this new "right" or reason to overturn past precedent. They might describe the discovery of this new "right" or overturning of past precedent in terms of almost metaphysical and surreal metaphors such as Pnumbra's and other such high sounding bullshit.

The bottom line. If its really in the constitution, it shouldn't be all that hard to explain where and why the basis is found.

Finally, like Porn. You know it when you see it, and you don't have to see it just because you disagree with the opinion's result.

Hans, thanks for keeping Cornellian straight. The Florida Supreme Court was being quite activist and attempting to change the rules of electoral procedure established by the legislature after the election was taken place a clear violation of the Constitution and existing enabling statutes with directly on point precedent prior to Bush v Gore in cases coming out of 5th circuit and elsewhere. The US Supreme court was being non-activist and merely requiring the Florida Supreme Court to stop trying to change the rules of electoral procedure in the state AFTER the election was held.

Says the "Dog"
10.24.2006 1:47pm
JunkYardLawDog (mail):
Hans, one last point.

The Florida Supreme Court like the rest of the democrats (remember the entire court was a democrat court) and the Gore campaign itself didn't want to "count" votes. They wanted to "cast" additional votes. The ridiculous counting procedures of devining dents and other methods of reading "intent" of an unknown voter as to what was intended did not result in counting votes but in CASTING ADDITIONAL VOTES. Chads fell out of holes on those cards by the thousands and thousands every time they were handled creating spoiled ballots that didn't otherwise exist and creating votes that didn't really exist on the day of election.

Bush still won every recount despite all the additional vote casting by local democrats doing the recount/casting of additional votes.

Says the "Dog"
10.24.2006 1:53pm
jrose:
Dog,

Either side of a 5-4 or 6-3 decision could be the "activist" side. Additionally, I suspect both sides of these tough decisions write lenghty opinions. It would be interesting research to catalog decisions based on these criteria and see where the chips fall.

As far as "non-common sense" and "I know it when I see it", these subjective criteria are not persuasive - not at least until they are backed up by an objective study which quantifies how often "what you know" just happens to align with your policy preference.
10.24.2006 2:05pm
Wombat:

Also, you don't mention the other, and more obvious approach to dealing with bad court decisions - appoint different judges.

You DO realize that that statement is a tacit acknowledgement that:
A) What is "constitutional" merely depends on which set of judges one runs into.
B) Therefore the entire activity of one of the branches of government is essentially bogus?

I realize that you are essentially saying the status quo is a not terribly inefficient way of doing things, but I don't think you are realizing (or at least vocalizing) the appalling (imo) assumptions behind your view (which happens to be the current state of affairs...)
10.24.2006 3:23pm
JunkYardLawDog (mail):
JRose,

Dog,


Either side of a 5-4 or 6-3 decision could be the "activist" side.


That's true but since we are talking about activist court decisions only the winning side was activist. Plus this was one of many potential criteria, they have to be evaluated together and not in isolation.


As far as "non-common sense" and "I know it when I see it", these subjective criteria are not persuasive


I think what is or isn't common sense is pretty easy for a non-lawyer to figure out. A great example of non-common sense is an opinion which justifies finding words in the constitution that aren't written there based upon analogies to the glow around the sun.

I'm not against studies that you describe. I and the majority of Americans just don't need one to know that courts are making more and more policy decisions disguised as constitutional interpretations. So many of them and so in your face about them that it is a threat to respect for the law, the moral authority of the courts, and judicial independence.

Says the "Dog"
10.24.2006 5:31pm
Colin (mail):
I think what is or isn't common sense is pretty easy for a non-lawyer to figure out.

I can't think of a worse legal standard than "common sense that requires no special education, training, or experience." You've boiled your standard down to "my gut feeling is right, and your gut feeling is wrong." Can you see why that's not a very useful standard?
10.24.2006 5:45pm
JunkYardLawDog (mail):
Colin, that's not at all what I boiled my standard down to. My standard is made up of many things a partial list of which included common sense. None of these criteria can be evaluated outside of all the other criteria.


However, if you wanted to boil down a lot of my standard but certainly not all of it is this, which I wrote above.


The bottom line. If its really in the constitution, it shouldn't be all that hard to explain where and why the basis is found. [and it shouldn't take a 100 pages and analogies to things that glow around the sun to say].


There are plenty of educated non-lawyers Colin. A legal education is just a trade school education, it doesn't take a person who isn't such a great thinker and turn him or her into one.

Consider this analysis from an old law partner of mine. Now long retired. How many "stupid idiot" lawyers do we deal with every year? Don't worry about passing the bar. They did.

Says the "Dog"
10.24.2006 6:23pm
Colin (mail):
The bottom line. If its really in the constitution, it shouldn't be all that hard to explain where and why the basis is found. [and it shouldn't take a 100 pages and analogies to things that glow around the sun to say].

Fantastic. Now we just need for someone to unearth the rare, original draft of the Constitution that includes footnotes telling us whether conduct can be speech and whether "a well-regulated militia" means anything. We could also use some definitive statement as to whether, when, and why original intent is the be-all-and-end-all analysis, and a cross-indexed set of volumes establishing that intent on all feasible issues. Until we find those documents, though, I don't think "common sense" is as useful as a well-reasoned and rigorous analysis. Even if that analysis takes 100 pages. As for "analogies to things that glow around the sun," I suppose we can take those or leave them, whatever they are.

A legal education is just a trade school education, it doesn't take a person who isn't such a great thinker and turn him or her into one.

So is flight school. I don't want Southwest to start hiring "common sense" airmen over experienced pilots, no matter how much shorter and simpler the "common sense" aircraft manuals are. For that matter, I don't want my plumber, electrician, doctor, accountant, barber, or banker throwing professional standards out the window in favor of some wishy-washy "common sense" or "I know it when I see it" standard. Why would you demand less from your judges and advocates?
10.24.2006 6:46pm
Hans Gruber:
"So is flight school. I don't want Southwest to start hiring "common sense" airmen over experienced pilots, no matter how much shorter and simpler the "common sense" aircraft manuals are. For that matter, I don't want my plumber, electrician, doctor, accountant, barber, or banker throwing professional standards out the window in favor of some wishy-washy "common sense" or "I know it when I see it" standard. Why would you demand less from your judges and advocates?"

If this view of the law prevailed we wouldn't have juries, would we?
10.24.2006 6:55pm
JunkYardLawDog (mail):
The failure to meet the common sense test is exactly why the judges in Kelo were so surprised that everyone on the left and the right were outraged by what their collective great legal educations viewed as a rather rountine and completely expected decision. They failed to realize just how far down the rabbit hole they had chased their myopic step by step analysis of the takings clause. They had no appreciation for the fact that they were the brilliant absent minded professors. Doing the obviously wrong and stupd thing, but with a perfectly good and scholarly analysis to justify their idiotic behavior.

Says the "Dog"
10.24.2006 7:05pm
Colin (mail):
If this view of the law prevailed we wouldn't have juries, would we?

I think my view does prevail. Juries determine facts, not law.
10.24.2006 7:20pm
JunkYardLawDog (mail):
Colin,


So is flight school. I don't want Southwest to start hiring "common sense" airmen over experienced pilots,



This is a strawman argument and it is based upon a false understanding of what I have written.

The correct analogy would be do you want a trained pilot with no-common sense who can follow the rule book and his training to the letter while the plane rush's towards an impending one point nose first landing in the ground. Or would you rather have a trained pilot exercising not just his training and education but common sense enough to look out the window from time to time and notice that while following his training and going by the book the ground appears to be getting larger in the through the window view of things.

Training and common sense are not mutually exclusive but that is exactly the falsehood strawman argument you set up in your example. Its a choice only between trained with no common sense or untrained with common sense. There are other choices Colin, but one has to have common sense to know that (wink).

Says the "Dog"
10.24.2006 8:52pm
Colin (mail):
What's the difference between "common sense" and "my unsubstantiated opinion?" You don't seem to mark a difference.
10.24.2006 9:26pm
JunkYardLawDog (mail):
Colin,

Why do you think common sense and unsubstantiated opinions have anything to do with each other. One's an opinion and one is good judgment (not judgment in a legal opinion sense). They are apples and oranges.

Says the "Dog"
10.24.2006 11:51pm
Lev:

Article II of the Constitution explicitly provides that it is the legislature of each state which must designate how electors for the president and vice president are selected. It is therefore a federal question when the legislature's will is clearly ignored, as it was by the Florida Supreme Court. Remember, the Florida Supreme Court essentially ignored the applicable statutes in order to serve what they thought a higher purpose--that every vote count. In doing so they quite arguably violated the US Constitution. Just see the Rehnquist concurrence in Bush v. Gore.


I don't get that. Sure SCOFLA revised the Florida election statutes. So what. Whether it acted properly or improperly was a state separation of powers issue to be resolved by the state.

Additionally, Gov Bush had already certified results to the EC.

And furthermore, when the SCt J's decided they were the deciders, the Florida state lege was in the process of recertifying who the state's electors would be cast for.

And furtherly furthermore, with SCOFLA's actions in progress, the federal statutory safe harbor date against challenge would only have been met by the State lege's and/or Gov Bush's certifications.

And additionally, all it would have taken to challenge the SCOFLA results was one rep and one senator objecting.

And under the US Constitution, the congress in joint session was the entity made up of the deciders as to which results to accept, Gov certification, lege certification, SCOFLA results.

And under the US Constitution, if House and Senate could not agree, then the House determines the President, voting by state, and the Senate determines the VP.

Result: Bush is Pres., as Repubs controlled more state delegations.
10.25.2006 3:27am