The Courts, the Constitution and the Federalist papers

Foxfyre wrote:

Quote:

Do the unborn have rights? If so, then how was making abortion legal and thus overturning most state law everywhere not a new law? If not, then how are laws related to mistreatment of the unborn constiutitonal?

If I remember my Locke correctly, we don't get our rights until birth. The constitution doesn't grant citizenship until birth. The court attempted to make a reasonable ruling based on rights of the woman vs rights of society and rights of an unborn child. Courts always balance those rights.

As for the legal question of making new law by overturning a law. If we accept your premise then all questions that the courts consider would make laws. Interpreting the Constitution is not making a law it is only interpreting an existing law in light of a question about it. Because it throws out laws based on them violating the constitution it doesn't create laws it eliminates laws in my viewpoint.

Laws about mistreatment of unborn are based on two things imo, the rights of the woman and the fact that the rights of another to injure the woman and fetus are not more than the combined rights of the latter two. Here again, the courts balance rights. Your "right" to injure someone doesn't have much standing in any court in the land.

Quote:

On a more local level, a local judge ruled gay marriage legal even though it was against the state's implied definition of marriage. The attorney general overruled the judge until the state could deal with it this past legislative session. If this one makes it to the supreme court and gay marriage is ruled legal everywhere, is this the court making law?

How could an attorney general overrule a judge? The judge could stay his order at the request of the AG until the legislature gets an opportunity to deal with it but I don't know any state that allows the executive branch in the form of the AG to over rule its courts. Again, this is the same issue as abortion. Ruling that the constitution, state or federal, makes an existing law void is not making law in my opinion. No more than it is making law to rule that a law doesn't violate the constitution.

This one is easy to explain. If the constitution states that there can be no discrimination under the law, then when a law exists that discriminates is overturned the court is upholding the law in the constitution.

This isn't a case of the court creating law but rather you disagreeing with the courts reading of the law. As was discussed earlier here, "stare decisis" which is precedent in rulings may sometimes be considered "making law." But if we say it is then it ALWAYS is.

let me ask you. When the court ruled on Bush v Gore was it making law? And shouldn't we apply exactly the same rules there as you want to apply to Roe? This is about being fair and constistent. I disagreed with Bush v Gore but I don't think it created any more law than Roe did. I think it violated a lot of judicial precedent however when it restricted the ruling to only that case.

0 Replies

Foxfyre wrote:

Do the unborn have rights? If so, then how was making abortion legal and thus overturning most state law everywhere not a new law? If not, then how are laws related to mistreatment of the unborn constiutitonal?

From listening to the Roe v. Wade hearings, I get the impression that they didn't, under Texas law in 1973. In the first hearing, Roe's attorney claimed, and Texas's counsel didn't deny, several facts that don't fit the model of protecting embryo rights. For example, if a woman aborted an embryo by herself, she was not guilty of any crime under Texas law; when a doctor performed an abortion and got caught, his punishment under Texas law was lower if the woman had consented to the abortion, than if she hadn't (again, the woman wasn't guilty of any crime); there were several other such facts which I don't remember. All of this indicates that the purpose of the laws was to protect women against themselves, not to protect any natural rights an embryo might have.

This was new to me. I had always assumed that the Roe side defended the mother's privacy, and the Texas side defended embryo rights. In the hearing, it looks like they tried to, but couldn't find any basis for it in Texas law. Given this, the outcome of Roe seems quite predictable, and less activist than I thought.

0 Replies

It has been awhile since I read Roe v Wade, but the language is exquisite. I think it was never intended to be the all-encompassing approval for unrestricted abortion as it has been interpreted. I think the underlying rationale was that the unborn child has no constitutional protection and therefore there is no constitutional basis to require a woman to carry a baby to full term.

The opinion also expressed language that the state had little or no intererest in the fetus in the first tri-mester, increased interest in the second tri-mester, and a good deal of interest in the third tri-mester. Therefore, if Roe v Wade is to be interpreted as 'law' rather than removing a legal barrier to abortion, it could be interpreted that the intent is special consideration should be given to the fetus that is likely viable.

So question: If my interpretation here is more or less accurate, is declaring that there is no constitutional basis for protection of the fetus due to the language of the constitution specifically affording rights to the 'born', did the Supreme Court create new law in making it unconstitutional for the states to forbid abortion?

0 Replies

foxfyre,

I agree that Justice Blackmun's Roe v. Wade opinion is very well written and did not give unlimited approval for abortion. Therefore, it would be hard to use it as an example of judicial activism. Thomas actually gave you an easier example to use: Marbury v. Madison. I agree with Thomas' view since most historians agree that Chief Justice Marshall was taking an agressive stance. I think Thomas was fair in describing Marbury as an example of "making law under the pretense of interpreting law."

0 Replies

wandeljw wrote:

Quote:

I think Thomas was fair in describing Marbury as an example of "making law under the pretense of interpreting law."

This doesn't answer my question though. If it is "making law" to interpret the constitution then doesn't that mean that all interpretations of the constitution or laws make law?

I find it a logical falacy to claim that some instances of interpretations make law and others don't. Either they all do or they all don't. It flies in the face 500 years of jurisprudence to claim suddenly that courts can't interpret laws. We can argue the semantics of whether interpretation means it 'makes laws' but we can't make it 2 different things to suit how we feel about a ruling.

The argument that Marbury "makes law" and other court rulings don't is a logical quicksand that will suck you under if you try to make it. Thomas writes:

Quote:

True enough. But my contention wasn't that the concept was new, it was that it wasn't, at the time, derived from the constitution. From reading Federalist 78, it seems likely to me that Hamilton was taking a position on a contentious subject. Also note how Hamilton defends his position in terms of common sense, not in terms of constitutional law. He says that it would have undesirable consequences if Congress judged the constitutionality of his own laws; he says the constitution ought to be regarded as supreme because it's a good idea. But I don't see him make a legal argument that the law itself compels things to be done this way.

I admit I can't provide any quotes from founding fathers who argued the other side of the debate at the time -- that the constitution be treated as just another statute, like England treated hers -- but it isn't clear to me that Hamilton reported a consensus among the founders, as opposed to taking a partisan position against some of them like he did on the federal power to tax.

Thomas, this is the same logical argument that the courts use when interpreting any law. They look at the intent and the possible consequences of the law. Was the intent of the constitution that it could be overturned by Congress? I think it is pretty clear that was not the intent. As you yourself stated, you can't find a single argument from that time period that promotes your argument. To claim that it is "contentious" simply because it is discussed in the Fed papers would mean I could discount every part of the constitution that is talked about in those papers. The Federalist papers were written because the idea of the Constitution was radical from the stand point that states had to give up some rights in order to make a stronger union.

I think the idea that the constitution was "supreme law" was fully understood at the time. Each of the states had a constitution and each of those were "supreme law" in the states. There was no reason to spell it out specifically in the constitution itself. Everyone understood it. Just because Marbury is the first judicial application doesn't mean it didn't exist before that. That is a logical falacy that fails because it would mean no law has meaning until ruled on by a court.

0 Replies

parados wrote:

Was the intent of the constitution that it could be overturned by Congress? I think it is pretty clear that was not the intent.

Since the last time I posted here, I read up on the legal history a bit. My source is E. Bauer: Commentaries on the Constitution, Columbia University Press (1952). According to that source:

(1) the state constitutions that were already in place when the federal constitution was adopted were unanimously viewed as supreme law for their state, and the state supreme courts did have the power to strike down the laws of their state congresses.

(2) This was, at the time, seen as a disruption in the British letal tradition, because Ireland, Wales, and Scotland had no institutions like this.

(3) None of the early commentaries on the federal constitution stated that congress ought to interpret them. This is consistent with your point, and inconsistent with mine.

(4) Beginning shortly after the constitution was signed, there began to be great contention over the nature of the federal constitution. Roughly, there were two schools of interpretations. The federalist school, whose chief representatives were Hamilton, Marshal, and Joseph Story, contended that the constitution established a new, souvereign state, and that the constituent state had surrendered their authority to that state by signing the constitution. This school saw the federal supreme court as the chief interpreter of the constitution. On the other side of the debate, the "compact" school (most prominent members were Jefferson, Tucker, and later Calhoun) contended that the constitution governed a compact of states who had retained their souvereignity, and accorded the right to interpret it to the individual states.

(5) Over time, as we know, the "Supreme Law" school won. But that doesn't mean it was right, and that the "compact" school was wrong. We are tempted to believe this today, but that's only because history is written by the winners.

parados wrote:

To claim that it is "contentious" simply because it is discussed in the Fed papers would mean I could discount every part of the constitution that is talked about in those papers.

Only the 'Federalist''s interpretation of it, and even that depends on timing. The Federalist papers were a collection of partisan pamphlets on the "pro" side of the ratification debate. Their argument was of the form, "we understand the constitution to mean X, and on that understanding we urge the people of New York to support its ratification". On the other side of the argument, anti-federalists argued, "we understand the constitution to mean Y, and on that basis we oppose ratification.

Historically, the federalists and the "supreme law" schools won, the anti-federalists and the "compact" school lost, and this makes Hamilton and Marshal the authoritative sources today of the original understanding of the constitution. But it wouldn't make them an authoritative sources on the original understanding in 1787 and 1803. If there is disagreement between Democrats and Republicans today of what a 1989 statute means, the Supreme Court couldn't determine its original meaning from a 1989 Ted Kennedy Op-Ed in the New York Times either.

With this in mind, I revise my position as follows: (1) There seems to be no evidence that anybody wanted Congress to interpret the constitution. On this point, Feinman was probably just playing with a hypothetical possibility in his Law 101. (2) There is evidence that after ratification, a significant number of serious contemporary scholars and judges saw the constitution as a compact whose authoritative interpretation was the business of the state. Fallacious or not, this seems to be how people looked at it at the time.

0 Replies

Thomas,

Thanks for being more diligent in your research than I have been or have time for at the moment. I will readily accept the point that there are 2 schools of thought and one said or still says it was a compact. On reflection that is probably still true today as we have the issue of "states rights" still heavily debated on certain topics.

Lets see if we can refine our topic a little more. What I want to discuss is the issue of "activist judges" and can they really exist in our system? Fox has stated that they do exist but then seems to say that one of the biggest cases of "judicial activism" in Roe was actually well laid out in its ruling. We can all disagree with individual rulings but does that mean the judiciary was activist or we just aren't familiar enough with their legal reasoning?

Thanks again Thomas. It is always a pleasure to disagree with someone that brings so much to the table because it means I have to work hard to defend my opinion. I only hope I will stay gracious while you beat me over the head with the stick of logic. I will be mostly out for the next 3 weeks to a month as I have a full plate in the real world. I will try to stop in when I can.

0 Replies

Supremacy Clause
The Constitution itself contains the "Supremacy Clause" in Article VI:

"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

The Constitution is the "Supreme Law" of the land.

Federal laws passed by Congress fall next on the heirarchy of laws, but ONLY those laws that are made in pursuant to the Constitition. (Congress has no power to make a law that violates the Constitution.) If Congress passes a law that is contrary to the Constitution, it is the duty of the President to veto the bill. If the President fails to veto the bill or if Congress overrides the presidential veto, our next line of defense (in our checks and balances system of government) is the judicial branch. Persons who are injured by the federal law may ask the courts to declare the law to be void as unconstitutional.

The courts play a major role in the checks and balances built into the constitution to ensure that Congress does not exceed the limitations placed upon Congress by the Constitution.

0 Replies

Okay, I don't claim any scholarly expertise on this issue but here's where I see activism occurring in Roe v Wade:

Up to the time of the Supreme Court decision known as Roe v Wade, abortion was illegal just about everywhere if not everywhere. Doctors could and frequently did get away with it in very early stages with a legal procedure we called the D & C, but once a pregnancy was obvious, no doctor could sneak an abortion by undetected if a nurse was present. There was still a culture of life prevalent in the USA, however, and most Americans viewed life as beginning at conception. Adoption was encouraged and was common for those women bearing children that they did not want to take care of or could not take care of.
Everyone knew of the health hazards involved and the cruelty of children begotten via rape and incest, etc., but life at all stages was considered precious and, by most, even a blessing from God.

Had the Court ruled that it would be legal to make abortion legal, there would be no problem. But they made abortion legal period. Presumably Congress can't pass a law outlawing it and certainly state and local governments are unable to ban it. The only remedy is for the Court to overturn itself and we all know how rare an event that is.

It seems that in one opinion, the Court made a new law that abortion is legal period and that nullified any law making it illegal. As the constitution itself does not address the issue, in my opinion the Supremes created a new law.

From Federalist 78

Quote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

P.S. I'm not ignoring the other case cited by Thomas, but am not familiar enough with it to comment on it so am reading up.

0 Replies

As I said before, I'm following this with interest and in ignorance. I'm learning as I go along.

Your point Foxfyre is that the Supreme Court made abortion legal in its ruling in Roe v Wade. Correct me if I'm wrong in that assumption.

But my understanding - I hasten to add my very tentative understanding - is that the Court ruled that the law in Texas as it stood violated the Constitution's guarantee to privacy and therefore was bad law, it was uconstitutional. Firstly I need to know if I'm correct on that

Now from that I don't see how the Supreme Court in Roe v Wade was "activist" rather it was upholding the Constitutional provisions on privacy. Therefore they didn't make new law but simply observed the Constitution on the issue of privacy. Have I got that right?

Apologies to all those who are well ahead of me in their knowledge of this case and the law surrounding it but I'm just an interested ferriner trying to keep up. I am not being disingenuous.

0 Replies

parados wrote:

Foxfyre wrote:

Quote:
I think every time the courts rule on matters like this, they frequently are making new law that was never envisioned by the federalists.

If it is a right how can it be a new law? Inalienable rights can't be created by laws they can only be infringed. That is part of what I wanted to discuss in this thread is what you think is making law when it comes to the court. Can you provide a specific example that we can discuss?

Our founding fathers gave us fundamental law that has stood the test of time and embraces our society as we progress through the centuries (and hopefully become more enlightened).

Our beginnings as a country start with the truth (paraphrased):

We hold these truths to be self-evident: That all men are created equal and that we are endowed by our Creator with certain inalienable rights -- and those rights include (but are not limited to) LIFE, LIBERTY, and the PURSUIT OF HAPPINESS.

As our society has become more enlightened, we have extended the definition of "all men" to include "all mankind" without reference to gender or race. We're still struggling with gender and race inequality, but we're making progress.

"Inalienable" rights are rights that can never be voluntarily surrendered to a governing power. Centuries ago, Kings ruled purportedly by "devine right." Accordingly, the King could do NO WRONG. The King had absolute power. "We the People," the King's subjects, lived and died at the King's pleasure.

At the time Locke was writing about the natural rights of men -- his writings were considered blasphemous and treasonous. It was a novel idea that the common man could possibly have rights that could not be snuffed out at the King's pleasure.

What does the word "alienable" mean? It means something that is transferable to another's ownership. So what does "inalienable" mean when it comes to certain rights endowed by our Creator? It means that each and every person is the sole master of his own life, his own liberty, and his own happiness. Essentially, our Creator did not endow us with these rights only to have us squander those rights or transfer ownership of those rights to a governing power.

When we formed our government, we did so to secure our inalienable rights for each and every individual in our society. We DID NOT transfer ownership to the federal government. We created a government of LIMITED POWERS.

Of course, to secure inalienable rights for each and every individual -- we formed a republican form of government -- (not a pure democracy) -- a government of law -- (not MOB or majority rule). Our lawmakers constantly struggle to balance the rights of the individual with the public good. And that is why -- for decades and now for centuries -- we are struggling to define the contours of LIFE, LIBERTY, and the PURSUIT OF HAPPINESS.

My inalienable rights to life, liberty, and pursuit of happiness do not allow me to engage in conduct that injures other persons (who were created equal to me). Therefore, I am accountable to society for my conduct. If I kill another person, intentionally and without justifiable cause (e.g., self defense), then society can hold me accountable by placing me on trial before a jury of my peers. If a jury finds me guilty of homocide, the judge can impose a punishment upon me.

But, on the most part, so long as I do not injure other people or interfere in their enjoyment of their inalienable rights, the government has no business interfering in my life/liberty/pursuit of happiness.

In my opinion, Roe v. Wade was decided correctly. In order for women to progress in society equally with men, women need to have control over their reproductive lives. Without the ability to determine when and how many children a woman will have, she can never be the sole master of her own life, her own liberty, and her own happiness. Without control over their own reproduction, women are relegated to second-class citizenship and subjugated to the role of parenthood whether it is desired or not.

If one even begins to question the burdens of undesired, unplanned, and unwanted parenthood upon an individual's life/liberty/pursuit of happiness, one only needs to look at the other threads wherein many men despise the role of "forced parenthood" when the women they impregnate refuse to have abortions.

PERSONALLY, I am against abortion. I am definitely against it for myself. Morally, I could never have an abortion. But, I understand that there are many women in this world who find themselves pregnant under extremely undesirable circumstances and they have to weigh the moral decision for themselves. I also understand that declaring statutes that criminalized abortions as unconstitutional was a step that we had to make in order to progress as a society.

As a society, we have a duty to protect life. A fetus is potential life. When I was a young woman, I had several miscarriages through no fault of my own. Until the problem was diagnosed and treated, I simply couldn't carry a pregnancy to term. I mourn the loss of those potential lives that could have been but for my miscarriages just like the anti-abortion advocates mourn the loss of all the potential lives that are lost through legalized abortion. BUT, society had to balance societal interests in protecting potential life with a woman's private right of self determination with respect to her own life/liberty/pursuit of happiness.

We MUST define the contours of LIBERTY (which encompasses the right to privacy; the right to self-determination; and the right to live our lives free from unreasonable government interference). Does the government have an compelling interest in protecting potential life? The ANSWER is YES. But that compelling interest has to be balanced against the woman's interests if she doesn't want to bring that potential life to fruition. The government cannot confiscate ownership of the woman's body and command her, under the threat of criminal penalties to her or her physician, to reproduce because of an accidental or careless conception.

The Supreme Court balanced the competing interests. The Supreme Court recognized that states have a compelling interest in protecting potential life and as soon as that potential life is viable -- states may prohibit abortions except in cases to save a woman's life.

NONE of us LIKE abortion. That's why the fight continues. I see the fight as driving us forward to a resolution to unwanted pregnancies -- and the resolution won't come from criminalizing abortions or overruling Roe v. Wade. The resolution will come from medical science. Someday, in the not so distant future, contraception will become infallible. The means of contraception will become so reliable that there will be no excuse for an unplanned pregnancy.

Perhaps a small implant can be placed in a woman to prevent ovulation and pregnancy will never occur unless the implant is removed by a physician in order to restore fertility. Perhaps men can also have miniturized implants that clamp off the semen supply and take the place of a vasectomy, but the implant can be removed to restore fertility. Perhaps both men and women can purchase miniturized scanners to scan a potential sex partner for an implant to ensure that an unwanted pregnancy will not occur. Whatever . . . but medical science will eventually progress to the point where unwanted pregnancies will become nonexistent.

And then what? We'll be facing different questions concerning fundamental rights and societal interests. To end poverty and expensive government welfare programs at taxpayer expense, will the government insist -- since people will be able to control reproduction with 100 percent certainty -- that they actually SUPPORT the children they bring into this world or face severe criminal penalties? Nonsupport of a child is a criminal offense and yet there are MILLIONS of children supported on government welfare rolls. Does the government have a compelling interest in making sure that children are supported by their parents so these children do not become dependent on taxpayer dollars? YES.

Do people have a fundamental liberty interest in having as many children as they want even though they can't support them?

As a society, we will continuously be defining the contours of LIBERTY as a fundamental right. The courts will always play an important role in this process.

0 Replies

goodfielder wrote:

As I said before, I'm following this with interest and in ignorance. I'm learning as I go along.

Your point Foxfyre is that the Supreme Court made abortion legal in its ruling in Roe v Wade. Correct me if I'm wrong in that assumption.

But my understanding - I hasten to add my very tentative understanding - is that the Court ruled that the law in Texas as it stood violated the Constitution's guarantee to privacy and therefore was bad law, it was uconstitutional. Firstly I need to know if I'm correct on that

Now from that I don't see how the Supreme Court in Roe v Wade was "activist" rather it was upholding the Constitutional provisions on privacy. Therefore they didn't make new law but simply observed the Constitution on the issue of privacy. Have I got that right?

Apologies to all those who are well ahead of me in their knowledge of this case and the law surrounding it but I'm just an interested ferriner trying to keep up. I am not being disingenuous.

You are correct.

The Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. In other threads, I've pointed out that due process of law consists of both substantive due process and procedural due process.

Procedural due process is simply notice and an opportunity to be heard. Fundamental fairness requires that people have notice of claims against them that affect their interests and an opportunity to respond to those claims in a manner appropriate for the interest at stake. When analyzing issues with respect to procedural due process, the Supreme Court applies the Mathews v. Eldridge test.

Substantive due process essentially gives SUBSTANCE to the concepts of life, liberty, and pursuit of happiness. How do you define "liberty?" Certainly, if "liberty" is to have any meaning at all, then we have the right to live our lives free from unreasonable government intrusion. What is reasonable and what is unreasonable government intrusion?

The Supreme Court has looked at all the rights that have been recognized. For instance, under Fourth Amendment jurisprudence, we have the right to be free in our persons, homes, and papers from unreasonable government searches and seizures. How do we know if a governmental search or seizure is "reasonable" or "unreasonable." The courts have spent decades in countless cases trying to establish the contours of our rights and when the government may reasonable intrude. The Court came up with the concept of "reasonable expectation of privacy." If we have a reasonable expectation of privacy, then it is unreasonable for the government to search or seize without a warrant. (E.g., inasmuch as we do not have a reasonable expectation of privacy in the garbage we put out on our boulevards for the garbage man to collect, then the government can search through our garbage without a warrant.)

Whether the right of privacy is implied from the entire penumbra of rights that are protected by the Bill of Rights or whether the right of privacy is implicit in our concept of LIBERTY, the Supreme Court found that we do have a constitutionally-protected fundamental right to privacy.

Under a substantive due process analysis (wherein our rights are given SUBSTANCE), the courts recognize that there are some rights / interests that are so fundamental that the government may not infringe upon those rights (no matter how fair the procedures might be) unless the government has a compelling interest in doing so and means used are necessary and narrowly tailored to serve that compelling interest.

Because the Supreme Court recognized that a woman has a fundamental right to privacy with respect to matters of reproduction, the state had to prove that it had a compelling interest in infringing upon that right. The Supreme Court certainly balanced the woman's interest and the government's interest and found that in the early stages of pregnancy, the government's interest in protecting potential life wasn't compelling enough to override the woman's right of self-determination (privacy).

The state's interest in maternal health becomes more important during the middle stage of pregnancy and the state certainly has a interest in regulating abortions.

However, the state's interest in potential life becomes compelling when the fetus is viable (capable of surviving outside the woman's womb). When the fetus is viable, the state may lawfully prohibit abortions except in cases where the mother's life is at risk.

So, you are right. The Court did not make new law in Roe v. Wade. The Court simply applied the law to the facts presented.

0 Replies

Debra_Law - thank you for two informative and clearly expressed posts, I am indebted to you.

0 Replies

parados wrote:

I find it a logical falacy to claim that some instances of interpretations make law and others don't. Either they all do or they all don't.

parados,
I don't understand why you are taking an "all or nothing" approach. Some decisions are "landmark" decisions that create precedent law. Other court decisions are merely an application of law that already exists. Thomas' remark about the Marbury decision was that it established a legal principle under the pretense of interpreting law.

0 Replies

Debra writes

Quote:

In my opinion, Roe v. Wade was decided correctly. In order for women to progress in society equally with men, women need to have control over their reproductive lives.

But could not the Court have accomplished the same thing by making it legal for abortion to be legal rather than ruling that abortion could not be illegal? This seems to me to violate the principle stated in Federalist 78 that the will of the people should be able to override decisions made by any branch of government.

Thus those communities/states who put the greater value on the right to life of that unborn child would have the right to protect it by forbidding abortion. Those communities/states who put the greater value on the rights of the woman could allow abortion. It seems to me that would leave the power with the people.

For myself, I am a pro lifer who does not want my government telling me I have to be pro life. I do not presume to judge any woman who makes a choice for abortion and there is a part of me that wants that option for women in certain very specialized instances.

I do think Roe v Wade was new law and results of an activist court overriding the will of the people even though I agree with the principles involved.

0 Replies

Foxfyre wrote:

Debra writes

Quote:
In my opinion, Roe v. Wade was decided correctly. In order for women to progress in society equally with men, women need to have control over their reproductive lives.

But could not the Court have accomplished the same thing by making it legal for abortion to be legal rather than ruling that abortion could not be illegal? This seems to me to violate the principle stated in Federalist 78 that the will of the people should be able to override decisions made by any branch of government.

Foxfyre:

With respect to States, the Fourteenth Amendment provides that NO STATE shall deprive any person of life, liberty, or pursuit of happiness without due process.

The Fourteenth Amendment simply becomes words without meaning if the people, through the democratic process, can deprive other people of their fundamental liberty interests simply because the majority of the people desire to intrude and interfere in other people's lives.

With segregation, the Supreme Court could have ruled that segregation is legal rather than illegal (unconstititutional) and then leave the matter up to the people in each state to decide whether or not their public restrooms, public dining rooms, and public transportation would be integrated or segregated. In fact, the Supreme Court did exactly that in Plessy v. Ferguson in 1892. It took decades before Plessy v. Ferguson was overruled and the Supreme Court ruled that segregation violated the Fourteenth Amendment. Brown v. Board of Education.

There are some rights that are so important that the government (the people through the democratic process) cannot infringe upon those rights unless the government (society) has a compelling interest and the means used are necessary and narrowly tailored to serve that interest. This was the founding father's promise when they drafted the Constitution and guaranteed to each of us a republican form of government. <---- WE THE PEOPLE ratified the Constitution and made it the fundamental, supreme law of the land.

Accordingly, WE THE PEOPLE were guaranteed that there are some lines that the government may not cross and that we will not fall victim to mob rule.

Individual LIBERTY. This is not a concept without substance.

The Supreme Court did not say that the States could not outlaw abortions. The Supreme Court recognized that when potential life becomes viable -- capable of surviving outside the mother's womb -- then the government has a compelling interest in protecting potential life. But, until then, if the woman's individual privacy and liberty interests are to have any meaning at all within the realm of reproduction, the decision whether to terminate a pregnancy or continue it to full term has to be in the hands of the woman herself.

If our country was a pure democracy wherein the majority rules, then you would be correct. The Supreme could leave the decision of what is reasonable or unreasonable government intrusion solely in the hands of the voters and their elected representatives. BUT, we are not a pure democracy. Neither the voters in their respective states nor their elected representatives, have the power to infringe upon individual fundamental rights unless they have a compelling interest in doing so. And once a compelling state interest is identified -- even then -- the means used by the state must be necessary and narrowly tailored to serve that compelling interest.

Please note, that Supreme Court has ruled that a state has a compelling interest in protecting potential life when it becomes viable -- but even then, the state's compelling interest in protecting that potential life does not trump the mother's right to life. That's why any law that prohibits abortion must provide an exception when necessary to save the mother's life. The interests of the majority have to be balanced against the interests of the individual.

0 Replies

Foxfyre wrote:

From Federalist 78

Quote:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

The Federalist 78 simply states, if there is a conflict between the Constitution and a legislative enactment, the Constitution prevails. After all, didn't the Constitution -- the supreme and fundamental law of the land -- come into existence by and through the intent and the power of the people?

The Constitution prevails because it is the fundamental law of the land -- it is the fundamental law that the people desired and ratified when they formed this country. It was through the will of the people that they formed a government of limited powers.

The Constitution embodies the fundamental law of this nation. The Constitution embodies the intention of the people that our government shall have limited powers and there exist some lines that our government may not cross. An ordinary enactment by a legislative body is NOT fundamental law. If an ordinary statute enacted by a legislative body conflicts with the Constitution, the Constitution is superior -- it trumps the inferior statute -- and it is the duty of the Courts to apply the superior law.

0 Replies

UNITED STATES CONSTITUTION:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

***

The Constitution is the Supreme Law of the Land. "We the People" have spoken.

Accordingly, in Roe v. Wade, the Supreme Court ruled that the inferior state law that criminalized abortions violated the Constitution -- and the Constitution prevails.

The Supreme Court cannot grant permission to state legislatures to pass laws that infringe upon fundamental liberty interests. If that were the case, then the overwhelming purpose of the Constitution to SECURE the blessings of liberty to ourselves and our progeny would be defeated.

0 Replies

Re: Supremacy Clause

Debra_Law wrote:

The Constitution itself contains the "Supremacy Clause" in Article VI:

"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

Hey, that's just not fair -- arguing what the constitution means based on looking at its text! That's doping! Laughing

Okay, under this clause, it is still possible that a state supreme court decides: 'this federal law violates the federal constitution, so the state of X is not bound by it.' But your quote clearly refutes my earlier contention that Marshal pulled his Marbury jurisprudence out of thin air, and that it's possible under the constitution that Congress decide whether its own laws are constitutional.

Debra_Law wrote:

Accordingly, in Roe v. Wade, the Supreme Court ruled that the inferior state law that criminalized abortions violated the Constitution -- and the Constitution prevails.

Yes, but in the context of Roe v. Wade (as opposed to the context of Marbury v. Madison) Foxfyre's contention (and my contention until a few days ago) wasn't that the Supreme Court cannot strike down an unconstitutional state laws. It was that it ruled falsely when it decided in Roe v. Wade that Texas state law was unconstitutional.

Debra_Law wrote:

The Supreme Court did not say that the States could not outlaw abortions. The Supreme Court recognized that when potential life becomes viable -- capable of surviving outside the mother's womb -- then the government has a compelling interest in protecting potential life.

One thing that helped change my mind about Roe for the better was that I looked up what Blackstone had to say about the right to life. According to Commentaries on the Constitution, early American jurisprudence routinely referred to him as the standard description of the rights the American constitution was made to protect. Judging by my casual reading of Supreme Court decisions, the Supreme Court today also refers to him in determining the original meaning of fundamental rights. As it turns out, Blackstone's accout of the right to life includes two paragraphs on abortion, and they are just barely more conservative as the Roe v. Wade decision.

In his Commentaries, Book 1, Chapter 1, William Gladstone wrote:

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.

An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.

Thus, according to the original understanding of the right to life, legal abortion would have been unconstitutional after quickening (~5th month) because it violated his right to life, except for the purpose of saving the mother's life. Illegal abortion before quickening would have been unconstitutional because it infringed the mother's right to liberty when the embryo has no right to life to balance it against. That doesn't seem too different from Roe at all.

0 Replies

Lots of great stuff on here. Thanks to everyone that is contributing.

Foxfyre wrote:

Quote:

I do think Roe v Wade was new law and results of an activist court overriding the will of the people even though I agree with the principles involved

As Deb has pointed out and I think the Fed papers does as well. The Constitution is the will of the people. If we the people disagree with the court's ruling we can amend the constitution. If we are unable to amend the constitution to fit our viewpoint then perhaps our viewpoint is not really the will of the people.

wandeljw wrote:

Quote:

parados,
I don't understand why you are taking an "all or nothing" approach. Some decisions are "landmark" decisions that create precedent law. Other court decisions are merely an application of law that already exists.

I understand about precedent but why do some create laws and other don't? We have laws against murder and against jaywalking. Both are laws. The precedent in Miranda is certainly a bigger one than the ruling concerning the use of dogs to search a car stopped at a traffic stop but both create precedent. It is just that one is more universally applicable. What is the criteria for making it "landmark" creation of new law? Is that criteria objective? The problem I see with the "activist judge" and the "courts creating laws" argument is that it applies only to rulings that are controversial and disliked, a purely subjective standard.

Thomas wrote:

Quote:

Hey, that's just not fair -- arguing what the constitution means based on looking at its text! That's doping!

or in this case a dope slap for both of us. Thanks Deb, can I have another. Laughing

0 Replies

The Courts, the Constitution and the Federalist papers

Related Topics

Quick Links

My Account

able2know