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A Jurisprudence of Original Intent?

 
 
Thomas
 
  1  
Reply Wed 16 Nov, 2005 04:02 pm
Debra_Law wrote:
You're wrong, Thomas. The Ninth amendment is not a source of substantive protection of unenumerated rights; it is a rule of constitutional construction.

I understand that, and I also understand that limiting the scope of protected rights only to the ones explicitly enumerated is an unacceptably narrow. But your reference to the Ninth amendment doesn't tell me when, in your opinion, a court would interpret the constitution too broadly in terms of the rights it protects. Assuming that you have a case where one party alleges that a constitutional right is violated, but the interest violated is not a constitutional right. In your jurisprudence, how do you ever reach the conclusion that it's not a constitutional right?

Debra_Law wrote:
Accordingly, when you claim that "abortion" (more specifically, a woman's liberty interest in determining for herself whether to continue or terminate a pregnancy and to control her own procreative destiny without unreasonable government interference) is not mentioned in the Constitution and is not protected, you are engaging in the very evil act of constitutional construction that the founders sought to prevent by the Ninth Amendment.

Again -- I am not denying that a woman has a protected liberty interest to make that determination. I am denying that the democratic process is undue for the purpose of determining what government interferences are reasonable. Probably as far back as Hippocrates, reasonable people have been disagreeing on what restriction on the woman's liberty can be justified by the interest of the embryo. The US Supreme Court is in no privileged position to decide this question, which is fundamentally one of ethics, not law. It therefore was wrong of the Supreme Court to preempt public debate and the democratic process in the way it did.

Thank you very much for correcting my sloppy writing about the constitutional convention in your earlier post, and thank you for all the cases you provided in this one. I'll respond to that part when I have familiarized myself with them. Right now it's 11 pm in Germany, and I've got to go.
0 Replies
 
Debra Law
 
  1  
Reply Wed 16 Nov, 2005 05:28 pm
Thomas wrote:
Debra_Law wrote:
You're wrong, Thomas. The Ninth amendment is not a source of substantive protection of unenumerated rights; it is a rule of constitutional construction.


I understand that, and I also understand that limiting the scope of protected rights only to the ones explicitly enumerated is an unacceptably narrow. But your reference to the Ninth amendment doesn't tell me when, in your opinion, a court would interpret the constitution too broadly in terms of the rights it protects. Assuming that you have a case where one party alleges that a constitutional right is violated, but the interest violated is not a constitutional right. In your jurisprudence, how do you ever reach the conclusion that it's not a constitutional right?


I already told you, but I think you missed it: The Constitution protects ALL liberty interests, great and small.

The Constitution does not CONFER rights. When the people established the government, they did not surrender their rights to the government. IF, by reference to a "constitutional right," you are referring to rights mentioned in the Constitution (e.g., the right to freedom of speech), the Constitution does NOT confer those rights either. The Bill of Rights is not a conferral of rights, but rather limitations on government power. The mention of some rights in the Constitution shall not be construed to deny or disparate other rights RETAINED by the people but not mentioned in the Constitution.

It was not necessary for the people to mention the right to wear hats or to go to bed at any time they desire in the Constitution in order to retain those rights and to limit the power of the government to deny or disparage those rights. After all, the people did not delegate power to the government to enact oppressive laws or to engage in oppressive conduct in the first place.

When a boy alleges that his local government infringed upon his liberty interest to wear his hat backwards at a county fair, the issue is NOT whether the boy has asserted a liberty interest protected by the Constitution because the Constitution protects ALL liberty, great and small, against arbitrary, unreasonable, or oppressive denials or deprivations. The constitutional question is whether the government had a legitimate interest in infringing the boy's liberty interest and whether the means used were rationally related to that legitimate interest.



Debra_Law wrote:
Accordingly, when you claim that "abortion" (more specifically, a woman's liberty interest in determining for herself whether to continue or terminate a pregnancy and to control her own procreative destiny without unreasonable government interference) is not mentioned in the Constitution and is not protected, you are engaging in the very evil act of constitutional construction that the founders sought to prevent by the Ninth Amendment.


Thomas wrote:
Again -- I am not denying that a woman has a protected liberty interest to make that determination. I am denying that the democratic process is undue for the purpose of determining what government interferences are reasonable.


You fail to understand that the people did not delegate power to the democratically elected branches of government to arbitrarily or oppressively deny or disparate liberty interests. If they had, then recourse to the democratic process would be the only remedy for violations of liberty interests. However, our founders did not establish a pure democracy so your insistence that people resort to the democratic process when their liberty interests are arbitrarily infringed is without merit. By establishing a constitutional republic, the people SECURED individual liberty interests from oppressions by the majority.


Thomas wrote:
Probably as far back as Hippocrates, reasonable people have been disagreeing on what restriction on the woman's liberty can be justified by the interest of the embryo. The US Supreme Court is in no privileged position to decide this question, which is fundamentally one of ethics, not law. It therefore was wrong of the Supreme Court to preempt public debate and the democratic process in the way it did.

Thank you very much for correcting my sloppy writing about the constitutional convention in your earlier post, and thank you for all the cases you provided in this one. I'll respond to that part when I have familiarized myself with them. Right now it's 11 pm in Germany, and I've got to go.


Resort to majoritarian ethics (or morals) would be fine if we were a nation of ethics (or morals) rather than laws. But, we are not. We are a nation of laws, not of (ethical or moral) men. In this country, moral disapproval alone is not a legitimate government interest that would allow the majority to force their morals/ethics on others through the operation of laws.

Good-night Thomas. Sleep well.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 18 Nov, 2005 10:09 am
Re: A Jurisprudence of Original Intent?
Thomas wrote:
Thanks for your understanding. Given that you are a jurist, it only seems plausible that you would rather give judges their moment of brilliance rather than let public discussion and voting run its cause. I understand, too. Razz

Don't be so sure that lawyers and judges are on the same side in this debate.

Thomas wrote:
I am not sure I understand: Did the Scalia snippet you quoted to me in your earlier post advocate a view you think meaningless? (I know you may not agree with it, but do you find it meaningless?)

I don't think it's meaningless. Actually, I think Scalia has a point (although he takes it much too far): legislative histories are not always reliable and should be used very cautiously when interpreting laws. I just don't think that Scalia's rejection of an "original intent" analysis of ordinary legislation can be reconciled with his acceptance of an "original intent" analysis of the constitution. That's not meaningless, that's contradictory.

Thomas wrote:
I have not examined this question, since I am not really interested in the lawmakers' intent. As I said, legislators frequently intend different things when they cast the same vote on the same bill; and even if they intended the same, laws frequently have unintended consequences. That doesn't change the meaning of the words.

Well, the meaning is certainly informed by the intent. Take a famous case from the UK: two men are fleeing from the police. One is armed with a pistol. They are confronted by an officer, and the unarmed accomplice yells to his armed counterpart "let him have it!" The armed man then shoots the officer.

Now, what did it mean when the unarmed man said "let him have it"? He argued later that he wanted the second man to hand over the gun to the officer. The prosecution, however, argued that he used "let him have it" in the colloquial sense of "shoot him." Certainly, what the unarmed man intended by his remark would be crucial to understanding what he meant by that remark.

Likewise, when we see the phrase "freedom of the press" in the First Amendment, we can understand what it means by what the framers intended. Surely, even you agree with that position, Thomas, since you acknowledge that "press" means more than just "printed materials." If the framers intended "press" to cover all forms of communication, then their intent is crucial to interpreting the meaning of that phrase.

"Originalism," therefore, has never been (and cannot be) strict "textualism." If we read the constitution purely textually (as Scalia wants to do with ordinary legislation), then there would be no reason to place any emphasis upon what the framers thought they meant at the time they drafted the document. "Freedom of the press," then, would mean what we think the text means, nothing more and nothing less. That's more like an interpretation of it as a "living constitution."

Thomas wrote:
Now let me back up, if I may, on this concept of society progressing and maturing. As I mentioned in an earlier answer to Debra, I have two fundamental problems with any jurisprudence based on that assumptions. Firstly, as virtually every European who knows European history will tell you, societies don't always progress and mature. Quite frequently they regress and decay. Thus, the assumption both Debra and you implied, that American society continuously improves, strikes me as extremely naive. It is only by the grace of Murphy that America has never quite gone the way of Yugoslavia, Chechenya, or Northern Ireland yet. If it does, how does your jurisprudence apply to that scenario?

That's an extremely odd position coming from a self-described libertarian. If you don't believe in the innate "rightness" of institutions, left on their own and free from outside interference, then I don't quite understand your continued adherence to libertarianism. If a society cannot be trusted to come up with its own definition of "freedom of press" to suit itself, for instance, then why should it be trusted to come up with its own definition of "free markets?"

I don't assume that American society continuously improves. Indeed, I am quite prepared to say that people, in general, are always on the verge of reverting to a Hobbesian state of nature. But then I also don't think that the craft of textual hermeneutics continuously improves either, which is something that I suspect you believe.

Thomas wrote:
My second problem is this: Even if I conceded that society's standards of decency are improving, and that the Court's opinions could track them, I would still be left with a practical problem: Society already has a method for reflecting these standards in their laws: They can always discuss their old laws, decide that they no longer reflect them, and vote for legislators who change them. Which other methods does a court have for tracking society's evolving standards of decency, and what makes you think these methods generally work better than public debating and voting? I know you can cite cases where this has happened to be the case, but what makes you think the Supreme Court's tracking methods for social mores generally work better than popular vote?

I don't. In fact, over history the supreme court has had a very dubious record in this regard. I don't endorse the "living constitution" because it yields the best consequences, I endorse it because it is the only method of constitutional interpretation that, I think, makes any sense.

Thomas wrote:
A lot of things could be said about a lot of subjects, but that doesn't necessarily mean we have reason to think them true. Could you point me to a few Supreme Court cases where, in your judgment, the 'originalist' opinion starts with the text of the constitution but ends up subverting its properly understood meaning, and the 'living constitution' style opinion doesn't?

I'd have to do a lot more research into cases than I have time in order to answer this question. There are many cases where I think the supreme court reached the wrong decision: whether it did so because of a flawed reading of the constitution's original intent would require a case-by-case analysis that I simply don't have the time to conduct. I would argue, however, that Bush v. Gore was a case in which the "originalists" on the court took a "living constitution" view of the 14th Amendment and got it totally wrong. Likewise, the court in the Slaughterhouse Cases[/url] completely misread the intent behind the "privileges or immunities" clause of the 14th.
0 Replies
 
Thomas
 
  1  
Reply Fri 18 Nov, 2005 04:34 pm
Debra_Law wrote:
I already told you, but I think you missed it: The Constitution protects ALL liberty interests, great and small.

Then why didn't the founding fathers write it that way? Why didn't they write what Thomas Jefferson wrote into the French constitution?

Thomas Jefferson, co-authoring the Universal Declaration of Human rights, wrote:
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

As we see, this founding father was capable of using such language. Why didn't the authors of the 5th and 14th amendments use words like "everything" and "no limits", unless they wanted to retain a discretionary power of the (state) legislatures to impose some limits on something?

Debra_Law wrote:
You fail to understand that the people did not delegate power to the democratically elected branches of government to arbitrarily or oppressively deny or disparate liberty interests.

Whether I fail to understand it or not, I suspect this point is a non sequitur. I see nothing in the US constitution saying that state governments have no powers except the ones explicitly delegated to them. It only says that about the federal government. I am unaware that the Supreme Court has ever incorporated the Tenth Amendment via the Fourteenth, in a sense such as this: "The Powers not delegated to a State by its Constitution, nor prohibited by it to its Counties, are reserved to the Counties respectively, or to the People." I might add that I find this unfortunate. Such an amendment would surely be nice to have.

Debra_Law wrote:
However, our founders did not establish a pure democracy so your insistence that people resort to the democratic process when their liberty interests are arbitrarily infringed is without merit.

My claim is that parliamentary democracy by itself is a due process of law: It is a process ensuring procedural fairness in the codifying and enforcement of the law. Legislation that passes through such a process may be disagreeable to some -- but it is not arbitrary, as evidenced by the fact that it passed. At the very least, it certainly is less arbitrary than the transient majority of nine judges writing their biases into the version of the constitution the legal system enforces.

In an earlier post, Debra_Law wrote:
We are a nation of laws, not of men. The mob doesn't rule.

This strikes me as a false dichtonomy twice over. Firstly, judges are men like everybody else. When they interpret the supreme law of the land as an invitation to insert their own value judgments wherever it uses vague terminology, that makes it emphatically not a rule of law. It makes it the rule of maybe 150 men over maybe 220 years.

Secondly, America isn't the only place where the mob doesn't rule. England, for example, is another such place. England has no written constitution and no judicial review that would enable courts to strike down laws as unconstitutional. The rule of law is doing fine there. In fact, I sometimes wonder if America might be a better place today if your founding fathers had just paid their stupid taxes, shut up, gone home, and remained citizens of England. But I digress. Anyway, I think both sides of your dichtonomy unpersuasive in the context we are discussing

In the same post, Debra_Law wrote:
Our founders placed constitutional limitations on the democratically-elected branches of government in order to secure individual rights from the oppressions of the many. We placed absolute authority in the Supreme Court to interpret the Constitution and determine its meaning as applied to cases and controversies arising under the Constitution while retaining the power to amend the Constitution if that's what we desire for our happiness.

Similar things could be said of those who founded the Islamic Republic of Iran: They placed constitutional limitations on the democratically elected branches of government in order to secure decency from the sinfulness of the many. Either way I don't like the resulting possibilities for judges writing their prejudices into the constitution. Over history, these possibilities have too frequently frustrated the purposes for which they were created. This is one reason I argue for policies of interpretation that I think likely to ameliorate the damage.

Debra_Law wrote:
Resort to majoritarian ethics (or morals) would be fine if we were a nation of ethics (or morals) rather than laws. But, we are not. We are a nation of laws, not of (ethical or moral) men.

There's your false dichtonomy again. Judges on the Supreme Court routinely insert their ethics into the law wherever it uses broad words like "necessary and proper", "due" process, "cruel and unusual" punishment, or "equal protection" of the law. Hence, the dichtonomy we face in practice becomes majority ethics vs minority ethics, rather than majority ethics vs the law. More precisely, we are talking about the ethics of a small, unelected, minority. A majority accountable to noone, knowing that its errors and usurpations are legally binding by definition. It defies all experience with human nature that they wouldn't take advantage of that to promote dubious ethical doctrines. And as Joe indicated after you posted, there is plenty of historical evidence that they did.

Debra_Law wrote:
In this country, moral disapproval alone is not a legitimate government interest that would allow the majority to force their morals/ethics on others through the operation of laws.

Let's test that against a hypothetical case where majoritan ethics strongly point one way and current constitutional jurisprudence points the other. Say I routinely go to women's toilets. A shopping mall that doesn't like my conduct sues me, according with long and deeply held moral sentiments of the majority. I argue that separate but equal toilets for men and women are unconstitutional for the same reason they are unconstitutional for blacks and whites. Nothing but majoritan ethics -- racist ethics in the one case, prudish ethics in the other -- has sustained either institution. Racially segregated toilets have already been found unconstitutional. Moreover, as an abstract matter of law, the analogy between race and gender is as good in the toilet case as in the marriage case. You yourself have used the analogy in other threads, arguing that restricting marriage to couples of different sexes is unconstitutional. Ergo, argues my lawyer, gender segregation of toilets is unconstitutional. Do I have a case? (We discuss that one a lot in the asylum. Razz)
0 Replies
 
Debra Law
 
  1  
Reply Sat 19 Nov, 2005 01:44 am
Thomas wrote:
Debra_Law wrote:
I already told you, but I think you missed it: The Constitution protects ALL liberty interests, great and small.


Then why didn't the founding fathers write it that way? Why didn't they write what Thomas Jefferson wrote into the French constitution?

Thomas Jefferson, co-authoring the Universal Declaration of Human rights, wrote:
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.


As we see, this founding father was capable of using such language. Why didn't the authors of the 5th and 14th amendments use words like "everything" and "no limits", unless they wanted to retain a discretionary power of the (state) legislatures to impose some limits on something?


I'm not as familiar with French history as I am with American history, but the French Declaration of Rights was not a constitution. It was a document that was presented to King and he signed it under duress. But, the King didn't intend to honor the declaration and shortly thereafter, the French revolution took place. After a whole lot of guillotining and mass murder, France fell under the control of Napoleon.

Our history is much different. After the American revolution, the country remained in the control of the people. Our Constitution was drafted to organize and limit our "general" government.

See FEDERALIST No. 84:

Hamilton wrote:
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights.

It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. ``WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.


Legitimate government powers are those powers specifically delegated by the people to the government. The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests. As Hamilton amply noted, given that our government was founded upon the power of the people, there was no reason to declare that the government shall not deny or disparage liberty when the government wasn't granted the power to deny or disparage liberty in the first place. The purpose of government was to SECURE liberty--not to take it away.


Debra_Law wrote:
You fail to understand that the people did not delegate power to the democratically elected branches of government to arbitrarily or oppressively deny or disparate liberty interests.


Thomas wrote:
Whether I fail to understand it or not, I suspect this point is a non sequitur. I see nothing in the US constitution saying that state governments have no powers except the ones explicitly delegated to them. It only says that about the federal government. I am unaware that the Supreme Court has ever incorporated the Tenth Amendment via the Fourteenth, in a sense such as this: "The Powers not delegated to a State by its Constitution, nor prohibited by it to its Counties, are reserved to the Counties respectively, or to the People." I might add that I find this unfortunate. Such an amendment would surely be nice to have.


State governments, like the federal government, have only those powers delegated to them by the people in their state constitutions. After the civil war and the ratification of post-civil war amendments, the people could invoke the power of the federal government (federal courts and Congress) to vindicate their civil rights against state transgressions.


Debra_Law wrote:
However, our founders did not establish a pure democracy so your insistence that people resort to the democratic process when their liberty interests are arbitrarily infringed is without merit.


Thomas wrote:
My claim is that parliamentary democracy by itself is a due process of law: It is a process ensuring procedural fairness in the codifying and enforcement of the law. Legislation that passes through such a process may be disagreeable to some -- but it is not arbitrary, as evidenced by the fact that it passed. At the very least, it certainly is less arbitrary than the transient majority of nine judges writing their biases into the version of the constitution the legal system enforces.


Democracy represents the will of the majority. Democracy by itself does not protect the rights of individuals, disfavored groups, or minorities from the tyranny or oppression of the majority. Thank goodness that our country is not a pure democracy. We are a constitutional republic with a system of checks and balances. We don't allow the political (non-neutral) branches of government as the alleged oppressor in a case or controversy to be in charge of determining the rightfulness or the wrongfulness of its own conduct. The judicial branch is the neutral branch of government that decides cases and controversies--including cases where an individual alleges the government has violated his life, liberty, or property interests in violation of the Constitution. The Supreme Court is the final authority with respect to Constitutional issues.


In an earlier post, Debra_Law wrote:
We are a nation of laws, not of men. The mob doesn't rule.


Thomas wrote:
This strikes me as a false dichtonomy twice over. Firstly, judges are men like everybody else. When they interpret the supreme law of the land as an invitation to insert their own value judgments wherever it uses vague terminology, that makes it emphatically not a rule of law. It makes it the rule of maybe 150 men over maybe 220 years.

Secondly, America isn't the only place where the mob doesn't rule. England, for example, is another such place. England has no written constitution and no judicial review that would enable courts to strike down laws as unconstitutional. The rule of law is doing fine there. In fact, I sometimes wonder if America might be a better place today if your founding fathers had just paid their stupid taxes, shut up, gone home, and remained citizens of England. But I digress. Anyway, I think both sides of your dichtonomy unpersuasive in the context we are discussing


The phrases, "we are a nation of laws, not of men," and "the mob doesn't rule," are popular ways of stating that our country is not a pure democracy, but rather a constitutional republic wherein the rights of individuals and minorities are secured against the tyranny of the majority.

In the same post, Debra_Law wrote:
Our founders placed constitutional limitations on the democratically-elected branches of government in order to secure individual rights from the oppressions of the many. We placed absolute authority in the Supreme Court to interpret the Constitution and determine its meaning as applied to cases and controversies arising under the Constitution while retaining the power to amend the Constitution if that's what we desire for our happiness.


Quote:
Similar things could be said of those who founded the Islamic Republic of Iran: They placed constitutional limitations on the democratically elected branches of government in order to secure decency from the sinfulness of the many. Either way I don't like the resulting possibilities for judges writing their prejudices into the constitution. Over history, these possibilities have too frequently frustrated the purposes for which they were created. This is one reason I argue for policies of interpretation that I think likely to ameliorate the damage.


The judicial branch of government is the neutral branch. If government conduct or the enforcement of a statute is unreasonable, arbitrary, or oppressive, the injured individual may invoke the power of the court and seek justice. That's the benefit of our constitutional republic: Liberty and justice for all.

Debra_Law wrote:
Resort to majoritarian ethics (or morals) would be fine if we were a nation of ethics (or morals) rather than laws. But, we are not. We are a nation of laws, not of (ethical or moral) men.


Quote:
There's your false dichtonomy again. Judges on the Supreme Court routinely insert their ethics into the law wherever it uses broad words like "necessary and proper", "due" process, "cruel and unusual" punishment, or "equal protection" of the law. Hence, the dichtonomy we face in practice becomes majority ethics vs minority ethics, rather than majority ethics vs the law. More precisely, we are talking about the ethics of a small, unelected, minority. A majority accountable to noone, knowing that its errors and usurpations are legally binding by definition. It defies all experience with human nature that they wouldn't take advantage of that to promote dubious ethical doctrines. And as Joe indicated after you posted, there is plenty of historical evidence that they did.


The Supreme Court is the the final authority on interpretation and meaning of our Constitution. That's the way our system works, like it or not. I happen to like our system because it provides security that we wouldn't have otherwise for the rights of individuals against an oppressive majority. As always, the people retain the power to overrule Supreme Court decisions via the amendment process.


Debra_Law wrote:
In this country, moral disapproval alone is not a legitimate government interest that would allow the majority to force their morals/ethics on others through the operation of laws.


Thomas wrote:
Let's test that against a hypothetical case where majoritan ethics strongly point one way and current constitutional jurisprudence points the other. Say I routinely go to women's toilets. A shopping mall that doesn't like my conduct sues me, according with long and deeply held moral sentiments of the majority. I argue that separate but equal toilets for men and women are unconstitutional for the same reason they are unconstitutional for blacks and whites. Nothing but majoritan ethics -- racist ethics in the one case, prudish ethics in the other -- has sustained either institution. Racially segregated toilets have already been found unconstitutional. Moreover, as an abstract matter of law, the analogy between race and gender is as good in the toilet case as in the marriage case. You yourself have used the analogy in other threads, arguing that restricting marriage to couples of different sexes is unconstitutional. Ergo, argues my lawyer, gender segregation of toilets is unconstitutional. Do I have a case? (We discuss that one a lot in the asylum. Razz)


On what grounds would the mall sue you? We can't discuss whether you have a valid defense to a claim until we know what the claim is.
0 Replies
 
Mortkat
 
  1  
Reply Sat 19 Nov, 2005 11:16 am
RE: Justices and their own personal morality

Oliver Wendell Holmes--

"The Justices of the Supreme Court cannot, of course, invoke their own personal morality, nor the ideals and virtues of morality generally. Those they must view as irrelevant. Equally, they cannot invoke their or other people's religious or philosophical views. Nor can they cite political values without restriction. Rather they must appeal to the political values THEY THINK belong to the most REASONABLE understanding of the public conception and its political values of justice and public reason. These are values that they believe in good faith, as the duty of civility requires, that all citizens as reasonable and rational might reasonably be expected to endorse"


The brilliant Judge Richard A, Posner replies:

"Overcoming Law" P. 197

"...That can't be right. No doubt a judge ought not to use the freedom of his office to try to impose whole-sale the natural-law views of Aquinas, or for that matter of Herbert Spencer, or the utilitarian philosophy of Bentham, or even of Mill, on the nation in the name of the Constitution...But a judge's philosophical or religious or economic or political views ARE BOUND TO SHAPE HIS RESPONSE TO SPECIFIC CASES IN THE OPEN AREA WHERE JUDICIAL DECISION MAKING IS DISCRETIONARY. How else are such cases to be decided? The values that all reasonable and rational people in our society endorse make TOO THIN A GRUEL TO RESOLVE THE DIFFICULT CASES....Appellate judges sit in panels( as do USSC judges) so a majority opinion in a difficult cases dwill generally reflect a compromise among comprehensive doctrines"


Posner reveals exactly why the Appointment of Judge Roberts and Judge Alito are so important to those who view the court as having swung to the left.
0 Replies
 
Thomas
 
  1  
Reply Mon 21 Nov, 2005 03:53 pm
Re: A Jurisprudence of Original Intent?
joefromchicago wrote:
I just don't think that Scalia's rejection of an "original intent" analysis of ordinary legislation can be reconciled with his acceptance of an "original intent" analysis of the constitution. That's not meaningless, that's contradictory.

Let me give you an example of what I think he means. I haven't researched the underlying facts and arguments myself, so am going by second- and third- hand accounts here. But the moral of the story does not depend on the following facts being accurate, which they may well not be.

When the constitutional convention wrote the language pertaining to slavery, the intent of the prevailing side was to sustain slavery in the South forever. But they couldn't bring themselves, or their opponents wouldn't let them, put this down in so many words. The words in the constitution are compatible both with sustaining slavery and with abolishing it. These were the words that were published and submitted for ratification in 1787. The records of the convention were not.

In the early 1830s, shortly after Madison had died, his notes on the convention were published. The intent of the authors was now much clearer, more pro-slavery than the words of the constitution would suggest to a non-member of the convention. Sure enough, pro-slavery advocates used this as an argument for demanding that the federal courts interpret the constitution in a more pro-slavery spirit than they had before. The abolishionists, by contrast, argued that what the states ratisfied was the meaning of the words, not the intentions that the members of the convention had in their mind. The courts' interpretation of the constitution should therefore remain unaffected by the publication of Madison's notes.

Again, I am not as sure as I want to be that this account of the relevant history is true. But if it is, I agree with the abolishionists' hermeneutical argument. And so, I take it, does Scalia, in the quote that you cited.

joefromchicago wrote:
Well, the meaning is certainly informed by the intent. Take a famous case from the UK: two men are fleeing from the police. One is armed with a pistol. They are confronted by an officer, and the unarmed accomplice yells to his armed counterpart "let him have it!" The armed man then shoots the officer.

I don't think this story is analogous to the interpretation of laws. In your case, we want to find out something about the gangster: what did he mean, should we jail him for incitement to murder? By contrast, when we interpret laws, we ultimately want to find out something about us. Which rules shall we, the people, be bound by? (Or, more accurately, you the people.)

joefromchicago wrote:
Likewise, when we see the phrase "freedom of the press" in the First Amendment, we can understand what it means by what the framers intended. Surely, even you agree with that position, Thomas, since you acknowledge that "press" means more than just "printed materials." If the framers intended "press" to cover all forms of communication, then their intent is crucial to interpreting the meaning of that phrase.

I concede that in most cases it makes no difference, because the meaning is the same whether you read the proceedings of the constitutional convention, or Blackstone's Commentaries, or Adam Smith's Lectures on Jurisprudence, or Friedrich Schiller's Don Carlos for that matter ("Geben Sie Gedankenfreiheit!") But in the rare cases where it does make a difference, the decisive question is which meaning the words convey to their reader, not which intentions led the authors to write the words.

joefromchicago wrote:
If we read the constitution purely textually (as Scalia wants to do with ordinary legislation), then there would be no reason to place any emphasis upon what the framers thought they meant at the time they drafted the document. "Freedom of the press," then, would mean what we think the text means, nothing more and nothing less. That's more like an interpretation of it as a "living constitution."

Yes; "freedom of the press" would be an example that meant the same to the convention than it did to the contemporary Americans who read it.

joefromchicago wrote:
That's an extremely odd position coming from a self-described libertarian.

I don't see the oddness in being a cultural pessimist and a libertarian at the same time. As long as one is more pessimistic about the culture of the rulers than about the culture of the ruled, lit seems to me that ibertarianism still the logical policy conclusion.

joefromchicago wrote:
If you don't believe in the innate "rightness" of institutions, left on their own and free from outside interference, then I don't quite understand your continued adherence to libertarianism.

I don't believe in their innate rightness. Only that they produce results that are, on the whole, more attractive than civil war or the tyranny that results when too much power is held by too few people.

joefromchicago wrote:
If a society cannot be trusted to come up with its own definition of "freedom of press" to suit itself, for instance, then why should it be trusted to come up with its own definition of "free markets?"

I don't. One reason I own a Green Card is because I mistrust Germany even more to come up with its definition of "free markets" than I mistrust the USA in this regard.

joefromchicago wrote:
I don't assume that American society continuously improves. Indeed, I am quite prepared to say that people, in general, are always on the verge of reverting to a Hobbesian state of nature.

And what role do you envision for the courts to play when such a reversion begins? Scalia has a floor below which he will not let society decent. It's a pretty low standard -- as Debra says he would hold the hanging of horse thieves constitutionally innocent. But he would draw a line with rounding up Gypsies in their caravans and forcing them into ghettos, as it still happens occasionally in Romania, with the tacit approval of the majority population. He would not permit situations like the one where the Serbian army rounds up Albanians and executes them for no reason. He would not permit drug dealers shooting up poor street kids, again with the tacit approval of the mayor and the city population. ('At least someone is doing something about these punks.') In all these situations, Scalia would draw a line. But a 'living constitution' scholar, it seems to me, would have to conclude that the standards of decency have evolved to a point where these things are okay, and would have to permit them on those grounds.

joefromchicago wrote:
But then I also don't think that the craft of textual hermeneutics continuously improves either, which is something that I suspect you believe.

I believe in writing laws that don't need state-of-the-art hermeneutics to understand. I believe in courts who write into their opinions "Dear legislators, we can't make sense of this law; please write a better one." That would be in contrast to courts who just make up a meaning on the fly.
0 Replies
 
Thomas
 
  1  
Reply Mon 21 Nov, 2005 04:34 pm
Debra_Law wrote:
I'm not as familiar with French history as I am with American history, but the French Declaration of Rights was not a constitution.

It was first written as a standalone document, that's true. But it was included in the constitution of 1793, and it has been included by reference in every French constitution since Napoleon III (1855 I think). France has run through 15 different constitutions since 1791, so yes, their constitutional history is a lot messier than yours. But the universal declaration has been part of the constitution since the 1850s. And as I understand it, almost all federal Bill of Rights cases happened later than that.

Debra_Law wrote:
Legitimate government powers are those powers specifically delegated by the people to the government.

While most state constitutions contain language to this effect, I wasn't aware that Hamilton's federalist paper addressed state constitutions too, or that the federal constitution does with its concept of enumerating delegated powers. I am still not convinced that this is a proper application of the federal constitution to state constitutions.

Debra_Law wrote:
The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests.

1) Is it your opinion that all restrictions to abortion prior to the third trimester are arbitrary and oppressive? 2) Hypothetically, suppose the Supreme Court had decided the opposite of what it actually decided: That embryos have a right to live, that the people never delegated powers to the government to arbitrarily or oppressively permit the killing of embryos, and that it therefore violated the federal constitution if states permitted abortion. Therefore, continues our hypothetical Supreme Court, abortion has to be illegal except in enumerated cases as rape or incest or danger to the mother's life, when it is allowed. Would you stand by your points about delegated powers, substantive due process, constitutional limitations on the elected branches etc., even though the court had applied them in such a way as to to come out the opposite way?

Debra_Law wrote:
The judicial branch of government is the neutral branch. If government conduct or the enforcement of a statute is unreasonable, arbitrary, or oppressive, the injured individual may invoke the power of the court and seek justice. That's the benefit of our constitutional republic: Liberty and justice for all.

Tell it to the victims of slavery -- the same slavery judicial-review-less Britain abolished generations before America did, and which the Supreme Court tried to uphold at the time, invoking substantive due process. (Sorry, that was an old one -- you must be hearing it a lot.)

Debra_Law wrote:
On what grounds would the mall sue you? We can't discuss whether you have a valid defense to a claim until we know what the claim is.

Well, on which grounds would a mall in the segregated South have sued a black guy who used the white's toilet? [Thinking ...] On reflection, they probably wouldn't have. Instead, their security personel would have thrown him out, and he would have sued for violation of his equal protection rights (and perhaps liberty rights.) So let's say this is how it works in our case about the man in the woman's toilet. And let's say it's not a mall, it's a government office building, so the law doesn't cut the building's owner any slack on liberty of contract grounds.

So the man who works in a government office building uses the woman's toilet; the cleaning lady calls security; security throws him out. The man sues for violation of 5th and 14th amendment rights, arguing that gender-segregated toilets are as constitutionally suspect as race-segregated ones. Does his case have a chance of prevailing?
0 Replies
 
Mortkat
 
  1  
Reply Tue 22 Nov, 2005 03:04 am
After reading Debra Law and Thomas, I do not understand( I am not a lawyer) their take on the Ninth Amendment. But I do understand, after several readings, the position taken by Judge Richard Posner who says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" COULD THIS BE A WARRENT FOR THE JUDGES TO RECOGNIZE NEW RIGHTS, BOTH AGAINST THE FEDERAL GOVERNMENT AND AGAINST THE STATES?
The extensive literature on this question HAS HAD LITTLE IMPACT...The Amendment DOES NOT idenfity any of the retained rights, or specify a methodology for identifying them."
0 Replies
 
joefromchicago
 
  1  
Reply Tue 22 Nov, 2005 09:06 am
Thomas: I don't want you to think that I'm ignoring you, but I anticipate that it will take a while before I can respond to your latest post.
0 Replies
 
Thomas
 
  1  
Reply Tue 22 Nov, 2005 09:14 am
joefromchicago wrote:
Thomas: I don't want you to think that I'm ignoring you, but I anticipate that it will take a while before I can respond to your latest post.

No problem -- I frequently run into time problems myself as I think of responses to your posts. (Same for Debra's) Just take your time. Smile
0 Replies
 
Debra Law
 
  1  
Reply Tue 22 Nov, 2005 01:18 pm
Thomas wrote:
Debra_Law wrote:
I'm not as familiar with French history as I am with American history, but the French Declaration of Rights was not a constitution.


It was first written as a standalone document, that's true. But it was included in the constitution of 1793, and it has been included by reference in every French constitution since Napoleon III (1855 I think). France has run through 15 different constitutions since 1791, so yes, their constitutional history is a lot messier than yours. But the universal declaration has been part of the constitution since the 1850s. And as I understand it, almost all federal Bill of Rights cases happened later than that.

Debra_Law wrote:
Legitimate government powers are those powers specifically delegated by the people to the government.


While most state constitutions contain language to this effect, I wasn't aware that Hamilton's federalist paper addressed state constitutions too, or that the federal constitution does with its concept of enumerating delegated powers. I am still not convinced that this is a proper application of the federal constitution to state constitutions.



The point of my previous response was to show that the people ratified the Constitution and organized the general government of the United States of America--a government of limited powers with checks and balances to guard against oppression. When the people organized the federal or national republican form of government, they RETAINED all their rights--they did not surrender their rights to the general (federal/national) government. Accordingly, it was unnecessary for them to list the rights they retained. Why provide that the United States government shall not abridge the people's freedoms when no power was delegated to the general government to abridge those freedoms in the first place?

The United States Constitution did NOT organize state governments. As a general rule, the United States Constitution was a limitation on FEDERAL powers, not state powers. To remedy STATE abridgments of civil or political rights, the people had to rely on interpretations of their own state constitutions to limit the powers and reach of their STATE governments.

The history of our nation AFTER the United States Constitution was ratified demonstrates significant strife between the "general" (federal/national) government and state governments with respect to slavery and states' rights. This continuing strife led to the southern states seceding from the union and the civil war.

AFTER the civil war and the ratification of the post-civil war amendments to the United States Constitution, the United States Constitution limited STATE powers. To remedy STATE abridgments of civil or political rights, the people could now invoke not only their own state constitutions, but also the United States Constitution to limit the powers and reach of the STATE governments.

Due to the very nature of OUR government that derives its power from the PEOPLE for the purpose of securing liberty, it is unnecessary for the people to tell the government that it may not arbitarily infringe liberty when it wasn't granted the power to arbitrarily infringe liberty in the first place. To arbitrarily infringe liberty is not a legitimate government end nor a proper means to serve a legitimate government end. For a statute to be constitutionally valid, it must serve a LEGITIMATE end and the means must be necessary and proper.

It is of no significance to the interpretation of the U.S. Constitution that the French people drew up a declaration of rights and forced their King to sign it under duress. They did so because the KING would otherwise have absolute power over them. Therein lies the vital difference between what the French did and what the Americans did. The Americans did not create a government of absolute powers from which "we the people" were required to declare exceptions.

WE THE PEOPLE fought for our freedom from oppression and tyranny and we retained ALL OF OUR RIGHTS--we surrendered nothing--when we formed a government of limited and delegated powers. It wasn't necessary for us to specifically declare or make a list of our rights in order for ALL LIBERTY to be secured against tyranny. The Constitution was never intended to be a charter of postive benefits. It doesn't CONFER rights--it LIMITS government.

The Constitution is a charter of negative liberties; it tells the state to let the people alone. See, e.g., Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982). The Constitution secures ALL LIBERTY against government oppression. PRE-civil war, that U.S. Constitutional security was generally against U.S. government oppression. POST-civil war, that security was extended against STATE government oppression.

Accordingly, any argument that a right or liberty that is not explicitly mentioned in the Constitution it is not secured by the Constitution is completely without merit. The Ninth Amendment is a rule of construction that prohibits the government from interpreting the Constitution in such an despicable manner.






Debra_Law wrote:
The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests.


Thomas wrote:
1) Is it your opinion that all restrictions to abortion prior to the third trimester are arbitrary and oppressive? 2) Hypothetically, suppose the Supreme Court had decided the opposite of what it actually decided: That embryos have a right to live, that the people never delegated powers to the government to arbitrarily or oppressively permit the killing of embryos, and that it therefore violated the federal constitution if states permitted abortion. Therefore, continues our hypothetical Supreme Court, abortion has to be illegal except in enumerated cases as rape or incest or danger to the mother's life, when it is allowed. Would you stand by your points about delegated powers, substantive due process, constitutional limitations on the elected branches etc., even though the court had applied them in such a way as to to come out the opposite way?


(1) The state may regulate the medical profession. As with ALL medical procedures, the state may require that a patient's medical decision is informed. So long as state regulation of the medical profession does not place an undue burden on an individual's liberty interests, the state regulation passes constitutional scrutiny.

(2) Your hypothesis is essentially based on a wrongful assumption that a woman's voluntary termination of a pregnancy is STATE action or that the state's failure to protect the fetus is a violation of the Constitution. It is not.

The due process clause provides that a state shall not deprive any person of life, liberty, or property, without due process of law.

The state is not using its power to force a woman to obtain an abortion. There is no state action that is depriving the fetus of its interest in life.

If your argument is that the state is depriving the fetus of its interest in life by failing to protect that life, case precedent firmly establishes that the government has no affirmative duty under the due process clause to protect any person. The Supreme Court is without power to impose that duty on a state to affirmatively protect life through state laws.

There is no state action upon which an alleged due process claim may be asserted and state inaction is not unconstitutional. Accordingly, it is legally impossible under the due process clause for the Supreme Court to find that states have "violated the federal constitution if states permitted abortion."

If there is any protection at all for the fetus's alleged right to life under the Constitution, it must come from the equal protection clause: Nor shall any state deny to any person within its jurisdiction the equal protection of the laws.

If a fetus from the moment of conception is deemed a person entitled to equal protection under the laws, then the intentional or knowing destruction of that life would be murder; the reckless destruction of that life would be manslaughter; and the negligent destruction of that life would be negligent homicide. Anti-abortion laws would be discriminatory and insufficient to protect the fetus's interest in life in that those laws would not provide fetus's with similar protections provided to other potential murder victims.

Accordingly, in order for a woman to avoid a conviction for murder, she would have to claim the abortion was for self-defense. In order for a doctor to avoid a conviction for murder, he would have to claim the abortion was for the defense of others (the woman's life). It would not be sufficient to claim that the abortion was performed to save the woman's life because the pregnancy would carry with it significant risks at some point in the future. Before one is allowed to take the life of another in order to save one's own life or the life of another, the law requires an immediate threat wherein the decision to kill is made under split-second circumstances.

If a fetus is a person entitled to equal protection of laws, think of all the possible ramifications and ask yourself if the "original meaning" of the equal protection clause was meant to protect a fetus as a person. A fetus would be entitled to inherit and to own property on the same terms and conditions as all other persons. If a woman in her first trimester slips and falls on an icy sidewalk in front of a store and miscarries as a result of that fall, the owner of the store would be criminally liable for manslaughter or negligent homicide of the fetus, etc. A life insurance company be required to insure the life of a fetus on the same terms and conditions as a parent's other children and would be required to pay death benefits in the event of miscarriage.

I see the potential for lots of problems in declaring a fetus to be a PERSON entitled to equal protection under the law. The fact that no state has ever treated a fetus as a person with respect to the general applicability of its state statutes certainly belies any legitimate claim that a fetus is a person entitled to equal protection of the laws.

In short, a court would NEVER rule that a state violates the federal constitution if a state "permits" abortion. Abortion will never be a fetus's right to life or equal protection issue. It will always remain within the context of a woman's liberty interest to determine her own procreative destiny. A woman's interest in her own procreative destiny must be secured against all oppressive government intrusions. Otherwise, if the state had a legitimate interest that would justify prohibiting abortions and trumping the woman's interests; it would also have a legitimate interest that would justify requiring abortions and trumping the woman's interests. Most of us would agree that a forced abortion in the interest of population control would be oppression, pure and simple.

Even if a state would attempt to oppress women and deny them the liberty to choose for themselves if they will bear and beget children, this foolish oppressive attempt won't stop women from choosing for themselves. Even if they revert to the days of using sharpened sticks, wire hangers, poisons, or throwing themselves down flights of stairs to induce abortions, women will retain the right to decide for themselves and will continue to get rid of pregnancies that they don't want even if doing so kills them in the process.

Government oppression is wrong--and it is especially wrong when one considers the alternatives that people will seek out to escape the chains of oppression. Whether through basement printing presses or back alley abortions, people do not tolerate oppression and find the means to exercise their liberty interests. Why should the people have to find alternative means to thwart oppression when the Constitution was designed to secure their individual liberty interests against government oppression? The Supreme Court is the guardian of the Constitution and I expect the justices to rule in favor of liberty and to stomp out oppression in whatever form it takes.


Debra_Law wrote:
The judicial branch of government is the neutral branch. If government conduct or the enforcement of a statute is unreasonable, arbitrary, or oppressive, the injured individual may invoke the power of the court and seek justice. That's the benefit of our constitutional republic: Liberty and justice for all.


Quote:
Tell it to the victims of slavery -- the same slavery judicial-review-less Britain abolished generations before America did, and which the Supreme Court tried to uphold at the time, invoking substantive due process. (Sorry, that was an old one -- you must be hearing it a lot.)


I think we had a very long and bloody civil war on account of adherence by the southern states to the concept of slavery and the landscape of our constitutional jurisprudence following the ratification of post-civil war amendments was changed forever.


Debra_Law wrote:
On what grounds would the mall sue you? We can't discuss whether you have a valid defense to a claim until we know what the claim is.


Thomas wrote:
Well, on which grounds would a mall in the segregated South have sued a black guy who used the white's toilet? [Thinking ...] On reflection, they probably wouldn't have. Instead, their security personel would have thrown him out, and he would have sued for violation of his equal protection rights (and perhaps liberty rights.) So let's say this is how it works in our case about the man in the woman's toilet. And let's say it's not a mall, it's a government office building, so the law doesn't cut the building's owner any slack on liberty of contract grounds.

So the man who works in a government office building uses the woman's toilet; the cleaning lady calls security; security throws him out. The man sues for violation of 5th and 14th amendment rights, arguing that gender-segregated toilets are as constitutionally suspect as race-segregated ones. Does his case have a chance of prevailing?



What if it's an unlocked facility with several stalls with doors, several sinks, and mirrors, and I'm standing in front of a mirror with my skirt hiked up to my waist while I'm straightening my skewed and uncomfortable panty hose. Is your hypothetical man in the ladies bathroom to straighten his panty hose too? I can't analyze the situation until all the facts are in.
0 Replies
 
Setanta
 
  1  
Reply Tue 22 Nov, 2005 01:47 pm
Thomas wrote:
And as I understand it, almost all federal Bill of Rights cases happened later than that.


Then your understanding is fatally flawed. The "Bill of Rights" refers to twelve amendments proposed by the First Congress, and sent to the several states by the Speaker of the House, Augustus Muhlenberg, in September, 1789. The last ten of those proposed amendments, three through twelve, were ratified by the states and became the first ten amendments to the Constitution on December 15, 1791. The second amendment proposed was ratified as the twenty-seventh amendment in May, 1992.

The Declaration of the Rights of Man and the Citizen was promulgated by the National Assembly (the self-reconstituted Estates General) in August, 1789. Therefore, the two documents are roughly contemporaneous. The principle operative difference on purely a technicality, is that the ten amendments to the Constitution did not become law until ratified by the several states, twenty-six months later. The Declaration of the Rights of Man and the Citizen was imposed from above, without any more consultation than that provided by the members of the Estates General who had consented to remain and form the National Assembly after the Tennis Court Oath of June, 1789, and therefore contained a large proportion of the clergy, and a small proportion of the noblesse. In practical tems, the National Assembly cannot reasonably be compared to the United States Congress on an electoral basis, and as you have noted, the Declaration was not in fact incorporated into French law permanently until Louis Bonaparte, the soi-disant Napoleon III had overthrown the Second Republic. The Bill of Rights became the law of the land immediately on December 15, 1791. Finally, the twelve amendments proposed were the work of the First Congress, and their first order of business, as the crucial underpinning of the Federalist argument for the adoption of Constitution was that such a bill of rights would be the first order of business for the legislature, were the Constitution ratified. On the other hand, the National Assembly, under the leadership of Bailly, the Mayor of Paris, and in the grip of those who become known as the Gironde, with a distinctly regional and republican character, rammed the Declaration through in the panic which succeeded the storm of the Bastille.

Not really the same thing at all, and your chronology is definitely defective.
0 Replies
 
Thomas
 
  1  
Reply Wed 23 Nov, 2005 02:47 am
Setanta wrote:
Thomas wrote:
And as I understand it, almost all federal Bill of Rights cases happened later than that. (Emphasis added in response to Setanta's response.)


Then your understanding is fatally flawed. The "Bill of Rights" refers to twelve amendments proposed by the First Congress, and sent to the several states by the Speaker of the House, Augustus Muhlenberg, in September, 1789. The last ten of those proposed amendments, three through twelve, were ratified by the states and became the first ten amendments to the Constitution on December 15, 1791. The second amendment proposed was ratified as the twenty-seventh amendment in May, 1992.

I didn't say the Bill of Rights happened after Napoleon III. I said most federal Bill of rights cases happened after that. Findlaw.com has an annotated constitution which illustrates this, among many other interesting facts about constitutional case law in America. I stand by the statement you quoted and took issue with.
0 Replies
 
Thomas
 
  1  
Reply Wed 23 Nov, 2005 05:14 am
Debra_Law wrote:
(1) The state may regulate the medical profession. As with ALL medical procedures, the state may require that a patient's medical decision is informed. So long as state regulation of the medical profession does not place an undue burden on an individual's liberty interests, the state regulation passes constitutional scrutiny.

How about my liberty interest in auctioning off my kidney on Ebay? As long as I am informed about the risks of living with just one kidney, is it unconstitutional in America that a state prohibit me from doing this? Or to prohibit a doctor from operating? I doubt that.

Debra_Law wrote:
If your argument is that the state is depriving the fetus of its interest in life by failing to protect that life, case precedent firmly establishes that the government has no affirmative duty under the due process clause to protect any person. The Supreme Court is without power to impose that duty on a state to affirmatively protect life through state laws.

Let's assume your assertion is true in the broad and sweeping form in which you made it. It would follow that if a state were to legalize murder, the Supreme Court would be without power to do anything about it. It couldn't impose a duty to protect its citizens' life through state laws. This conclusion cannot be true, so there must be some qualifications to your statement it follows from. (And the equal protection clause would not give it that power either, because every murder would be legal. )

Debra_Law wrote:
In short, a court would NEVER rule that a state violates the federal constitution if a state "permits" abortion. Abortion will never be a fetus's right to life or equal protection issue.

I wouldn't be so sure of that. The German constitution says similar things in its pertinent articles as does the American constitution. Like the American constitution, the German one protects a person's liberty. We have case law which acknowledges that anti-abortion laws infringe on a woman's liberty. Like the American constitution, the German constitution protects a persons right to live, but does not specify when one becomes a person, or something close enough to one to have a right to live. I admit there are subtle differences: For example, the possessor of natural rights in the German constitution is "jeder" (everyone), while in America it is "persons". But for purposes of discussing abortion, the written law and the case law at the beginning of the 70s was comparable in America and Germany. Nevertheless, in 1973, your Supreme Court, in Roe v. Wade found an affirmative duty to permit abortions except in the third trimester. Only two years later, the German Constituitional Court applied similar constitutional law and found that the embryo has a right to live that by default overrides the woman's liberty interest. (We don't have case names, only case numbers, and the German decision does not seem to be webbed. But I can find it for you if you're interested.) When similar law leads to diametrically opposed decisions, that means the decisions reflect the will of the judges more than they reflect the law. I think that's exactly what they did in the German and American abortion cases.

Just for the record: I think both decisions were bad. In the best scenario, both Courts would have deferred to the legislature. In the second best scenario, the Burger court would have found the specific abortion laws of Texas unconstitutional because they patronized the woman in many ways that didn't protect the embryo. (This scenario wasn't available in Germany. In the German case, our "Congress" had passed a law permitting abortion in the first trimester and prohibiting it (with exceptions) after that. The opposition then filed a suit before the constitutional court, saying the law was unconstitutional on its face.)

General language, like the one in which legal philosophy talks about concepts like "life" and "liberty", tends to be unhelpful in deciding cases where fundamental principles are on both sides of the balance that the court has to strike. The Supreme Courts of both America and Germany had nothing better to rely on, so it was perhaps inevitable that they reached overbroad decisions. Inevitable or not, I think they both did more harm than good.

Debra_Law wrote:
What if it's an unlocked facility with several stalls with doors, several sinks, and mirrors, and I'm standing in front of a mirror with my skirt hiked up to my waist while I'm straightening my skewed and uncomfortable panty hose. Is your hypothetical man in the ladies bathroom to straighten his panty hose too? I can't analyze the situation until all the facts are in.

I have no intuition about how the details of the facts would affect the legal analysis. The thrust of my legal argument (which I don't believe in as a point of ethics) is going to be that prudishness justifies segregation no more than racism does. But before we get there, I am interested in finding out if there is any non-trivial scenario in which the Supreme Court would find a violation of equal protection. So let's start with a harmless case, then turn up the volume as needed. Say the women's toilet is divided into booths, and the man is trying to use one of those booths. But he doesn't even get to enter the toilet -- the cleaning lady keeps him out before security gets him -- so there is no specific harrassment of women in the toilet to consider, or anything like that.
0 Replies
 
Setanta
 
  1  
Reply Wed 23 Nov, 2005 05:51 am
Thomas wrote:
I didn't say the Bill of Rights happened after Napoleon III. I said most federal Bill of rights cases happened after that. Findlaw.com has an annotated constitution which illustrates this, among many other interesting facts about constitutional case law in America. I stand by the statement you quoted and took issue with.


In that case, in the context of the paragraph in which the statement appears, and as a response to Ms. Law's remark, your remark is meaningless--a mere curiosity.
0 Replies
 
Setanta
 
  1  
Reply Wed 23 Nov, 2005 06:04 am
Here, Thomas, i'll make it easy for you. You're comparing apples to oranges. Were you comparing when each document were adopted into the respective constitutions, it would be a false understanding on your part, as i pointed out--one is 1791, the other early Second Empire, roughly mid-1850's (don't have an accurate source ready to hand, and it's not germane to this comment). Were you comparing when each document appears in case law, your comparison would be valid--but you weren't. You were comparing the adoption of one document to the appearance of the other in case law--a meaningless comparison.
0 Replies
 
Thomas
 
  1  
Reply Wed 23 Nov, 2005 06:08 am
Setanta wrote:
Thomas wrote:
I didn't say the Bill of Rights happened after Napoleon III. I said most federal Bill of rights cases happened after that. Findlaw.com has an annotated constitution which illustrates this, among many other interesting facts about constitutional case law in America. I stand by the statement you quoted and took issue with.


In that case, in the context of the paragraph in which the statement appears, and as a response to Ms. Law's remark, your remark is meaningless--a mere curiosity.

As it seemed to me, Ms Law's remark indicated that the Universal Declaration was not part of the French constitution and therefore not a valid basis for deciding cases under constitutional law. The intent of my reply to her was that it has been part of the French constitution for 150 years now. It therefore has been a basis for deciding cases for that long. This proves that its language is no impediment to reaching decisions. Hence it is valid to compare the Universal Declaration with the American Bill of Rights, which was the reason I brought it up in the first place.

But if your "mere curiosity" refers to the fact that the Supreme Court decided only very, very few Bill of Rights cases before Napoleon III -- fair enough.
0 Replies
 
Setanta
 
  1  
Reply Wed 23 Nov, 2005 06:12 am
That's exactly the point, Thomas . . . you compare when one was become a basis to when the other was actually put to use as a basis for case law. Dig up the relevant French case law, and you've got a valid comparison.
0 Replies
 
Thomas
 
  1  
Reply Wed 23 Nov, 2005 06:14 am
Setanta wrote:
Here, Thomas, i'll make it easy for you.

I was comparing two wordings, both of which were written around 1789, both of which are parts of constitutions, and one of which would have been a much clearer rule for deciding cases of constitutional law than the other. My original point was on language, not history.

Thanks for making it easy for me though. It is always a pleasure when people accomodate my limited intellect.
0 Replies
 
 

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