An Activist Court

[JackC]

http://a257.g.akamaitech.net/7/257/2422 ... 03-633.pdf

This is a link to the Supreme Court's decision holding the dealth penalty to be unconstitutional with respect to minors. To me this is another in a long stream of muddled decisions. I think that Scalia's dissent is brilliant and convincing.

The issue is not whether the death penalty is a good or bad thing with respect to minors, or anyone else. Scalia would have no objection if all 50 states passed statutes outlawing the death penalty. The issue is - is the death penalty something that is forbidden under the Constitution.

The Supreme Court has made an utter mess of this. For almost 200 years, the death penalty was never viewed as unconstitutional because it was "cruel and unusual punishment." Then in the 1960s the 9 members of the Supreme Court decided that is was, in fact, cruel and unusual punishment, - for ANY crime. Then a few years, and a few new justices, later, the Supreme Court held that it was not cruel and unusual punishment prohibited by the Constitution. Now, a couple of decades later, 5 of the 9 justices find that it is "cruel and unusual punishment" prohibited by the constitution- with respect minors only.

This is a total legal farce. TTo intrepret crusel and unusual punishmentm the court relied on our (??) "evolving standards of decency". But what do nine judges know about the "evolving standards as of decency" that state legislators, who are elected by the people, don't know? NOTHING! That should be obvious from the fact the the SC has reversed itself on this very obviously important issue 3 times in just a couple of decades.

While those who are against the death penalty may cheer because of the result, do you really think it is a good thing that 9 judges on the US Supreme Court make this decision instead of the people through their elected state officials? Will you feel the same way if 20 years from now, a new "activist" Supreme Court finds that abortion is not only NOT protected by the Constitution, but indeed is FORBIDDEN by the Constitution (based on their judgment, (or, again, the judgment of 5 justices only), that "life begins at conception."

By and large the people of the US have caught onto this. They have largely come to accept that the Constitution means nothing except what 5 out of 9 judges, who have no special insight or expertise with respect to issues of key societal interest, say it means. That is, in large part, why judicial nominations have become more and more devisive.

As Scalia is right to warn , the Constitution was meant to preserve certain rights of individuals regardless of what the majority opinion may be. Although it had broad concepts in it, it was not intended as a document that was to be twisted and contorted to enable 9 judges to rule on every important social issue of the day. A "Constitution" that is used in that way really provides no protection at all.

[Ralph]

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The Court and Constitutional Interpretation

"Equal Justice Under Law"-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law, and thereby, also functions as guardian and interpreter of the Constitution.

The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans . . . . A more imposing judicial power was never constituted by any people."

The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written constitution still in force.

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the Republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society's need for order and the individual's right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

While the function of Judicial Review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court's power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared.

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind . . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated and minor ingredients which compose those objects be deduced from the nature of the objects themselves."

The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the Court's history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.

The Justices must exercise considerable discretion in deciding which cases to hear, since more than 6,500 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of disputes between states or between a state and the federal government.

When the Supreme Court rules on a constitutional issue that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

[JackC]

Scalia, and all the others who have urged the views and concerns articulated in his dissent, are not idiots. They do not maintain that the Constitution is always clear and that all issues of interpretation can be settled by divining the "framers' intent." The fact that "founding fathers" were aware that the Constitution is broadly worded and obviously would require interpretation in various respects, does NOT, however, entail that they ever imagined that the broad langauge in the document would used by future justices as a means allow them to decide issues, without any consideration of the original meaning and intent of the broad language

If, say in 20 years, 5 Supreme Court justices relying on the broad and "evolving" meaning of language of the Constitution declare that "life begins at conception" and use that as a basis to declare all abortion to be unconstituional, will you be so quick the Supreme Court's perogative to interpret Constitutuinal language so braodly and free from historical context?

[Ralph]

Scalia isn't an idiot-he's brilliant by any definition.

The issue is the fundamental nature of our Constitution. There are different, and opposing, interpretive philosophies. Scalia represents the extreme polarity of one viewpoint. The furthest from his perspective is Justice Stevens.

Would I be happy if a future bench outlaws the right to abortion? Of course not. But that doesn't mean I don't understand that the history of Constitutional interpretation is also the history of the Supreme Court as a human institution. With three justices currently avowed to overturning Roe v. Wade, it isn't beyond imagination that this may happen.

Interestingly, in the area of individual freedom no constitutionally defined right has ever been reversed. Even with abortion, the Court took the route of narrowing free availability of abortion and strengthening state regulatory powers rather than overturning Roe v. Wade (Planned Parenthood of Southeast Pennsylvania v. Casey).

The problem for me with your position above, Jack, is that it virtually mirrors the argument before the Supreme Court of a great advocate, John W. Davis, who said the Court had no business overturning a complex societal consensus about a divisive issue - that was a legislative function, not a judicial one. The case was Brown v. Board of Education.

[pizza]

So what makes you think Brown v. Board of Education is forever carved in concrete? Do you believe that society is so constituted that every case representing social advancement will forever be viewed as such and that the Supreme Court will forever resist attempts to reverse them? You've just demonstrated that such is not always the case.

[Ralph]

So what makes you think Brown v. Board of Education is forever carved in concrete? Do you believe that society is so constituted that every case representing social advancement will forever be viewed as such and that the Supreme Court will forever resist attempts to reverse them? You've just demonstrated that such is not always the case.

*****

Reverses can happen. It's the duty of those who care about civil rights and individual freedom to constantly man the ramparts to prevent erosion.

And the Court often speaks of stare decisis not as an ossified monument to judicial intransigence but as a bulwark of a growing body of law. Even Justice Scalia said clearly at his confirmation hearing that he would not overturn Griswold v. Connecticut, a decision he disagreed with, because it was so accepted by most Americans.

"Eternal vigilance is the price of liberty." Remember that. But faith in a Court that has done so much to develop individual rights, along with a healthy regard for the possibility of a future bench swaying to a different breeze, are good republican values.

And I've never heard ANYONE suggest that Brown could be overturned under any circumstances. If that happened, don't worry about Constitutional law. It would be as irrelevant as Dred Scott was to resolving the slavery issue and we'd be fighting in the streets.

[JackC]

Scalia isn't an idiot-he's brilliant by any definition.

The issue is the fundamental nature of our Constitution. There are different, and opposing, interpretive philosophies. Scalia represents the extreme polarity of one viewpoint. The furthest from his perspective is Justice Stevens.

Would I be happy if a future bench outlaws the right to abortion? Of course not. But that doesn't mean I don't understand that the history of Constitutional interpretation is also the history of the Supreme Court as a human institution. With three justices currently avowed to overturning Roe v. Wade, it isn't beyond imagination that this may happen.

Interestingly, in the area of individual freedom no constitutionally defined right has ever been reversed. Even with abortion, the Court took the route of narrowing free availability of abortion and strengthening state regulatory powers rather than overturning Roe v. Wade (Planned Parenthood of Southeast Pennsylvania v. Casey).

The problem for me with your position above, Jack, is that it virtually mirrors the argument before the Supreme Court of a great advocate, John W. Davis, who said the Court had no business overturning a complex societal consensus about a divisive issue - that was a legislative function, not a judicial one. The case was Brown v. Board of Education.

Talk about a straw man! My position in no way "mirrors" the argument by Davis in Brown. The Supreme Court has every "business" and right to "overturn a complex societal consensus about a devisive issue" - if that consensus runs counter to a constitutionally protected right. Scalia would not assert otherwise.

What he would and does assert is that if you think that a SC justice need not try to understand and abide by the original meaning and intent of Constitutional provisions, then there is nothing else to replace that intent and to constrain the Court.

The fact that the SC happens to make a law that is just, right and moral etc does not in and of itself show that the Court acted properly. It is not the SC's role to make just laws. It's role is make sure that laws that are passed do not violate the Constitution. I would have no objection at all if every state passed a law that essentially making abortions legal on the same basis as set forth in Roe. Indeed, I would like to see that happen. Still I think it was a bad day when the Court decided to find a right to an abortion in the Constitution.


And for the record, as you know, even if the SC voted 9-0 to overturn Roe, that would not make abortion illegal. It would just allow states to decide the issue. There will be vary many states that would allow it. So the presence of 3 votes for overturnig Roe does not in any way suggest that the Court is on its way to making abortion Constitutionally prohibited.

But if it did, perhaps based on "evolving standards" of what "life" means, I suspect that you would not be defending their actions on the basis that they are acting under the same principles of Constituional jurisprudence that supported the Court's holding in Brown.

And what of the death penalty? You must be admit that it is a bit of a farce to have the SC changing its mind on this issue every few years. As Scalia properly argues, it shows what happens when justices decide that they need not feel constrained by "original intent" in this area.

[Kevin R]

Jack's points are well taken (I made similar ones, though not as eloquently as he has, when this outrageous case was decided a few weeks ago). The court must not take such political questions from the people.

http://www.usscplus.com/info/interp.htm

Home of the USSC+ U.S. Supreme Court Database
Home | Contact Us | Privacy Statement | Return & Refund Policy
The Court and Constitutional Interpretation

"Equal Justice Under Law"-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law, and thereby, also functions as guardian and interpreter of the Constitution.

The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans . . . . A more imposing judicial power was never constituted by any people."

The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written constitution still in force.

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the Republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society's need for order and the individual's right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

While the function of Judicial Review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court's power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared.

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind . . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated and minor ingredients which compose those objects be deduced from the nature of the objects themselves."

The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the Court's history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.

The Justices must exercise considerable discretion in deciding which cases to hear, since more than 6,500 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of disputes between states or between a state and the federal government.

When the Supreme Court rules on a constitutional issue that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

The author of that piece seems clueless as to the ramifications of judicial activism. And the author misrepresents Madison's views on judicial review. He (or she) seems unaware that Madison was very suspicious of judicial review, seeing it as contrary to majority rule (“This makes the Judiciary Department paramount to the legislature, which was never intended and can never be proper”).

[Ralph]

Well, it's certainly true that Madison waffled, deserting his original Federalist values. And in several instances including Judicial Review, the meaning of the Necessary and Proper Clause and the scope of the congresional Spending Power his take was categorically rejected by the Court.

[Ralph]

Scalia isn't an idiot-he's brilliant by any definition.

The issue is the fundamental nature of our Constitution. There are different, and opposing, interpretive philosophies. Scalia represents the extreme polarity of one viewpoint. The furthest from his perspective is Justice Stevens.

Would I be happy if a future bench outlaws the right to abortion? Of course not. But that doesn't mean I don't understand that the history of Constitutional interpretation is also the history of the Supreme Court as a human institution. With three justices currently avowed to overturning Roe v. Wade, it isn't beyond imagination that this may happen.

Interestingly, in the area of individual freedom no constitutionally defined right has ever been reversed. Even with abortion, the Court took the route of narrowing free availability of abortion and strengthening state regulatory powers rather than overturning Roe v. Wade (Planned Parenthood of Southeast Pennsylvania v. Casey).

The problem for me with your position above, Jack, is that it virtually mirrors the argument before the Supreme Court of a great advocate, John W. Davis, who said the Court had no business overturning a complex societal consensus about a divisive issue - that was a legislative function, not a judicial one. The case was Brown v. Board of Education.

Talk about a straw man! My position in no way "mirrors" the argument by Davis in Brown. The Supreme Court has every "business" and right to "overturn a complex societal consensus about a devisive issue" - if that consensus runs counter to a constitutionally protected right. Scalia would not assert otherwise.

What he would and does assert is that if you think that a SC justice need not try to understand and abide by the original meaning and intent of Constitutional provisions, then there is nothing else to replace that intent and to constrain the Court.

The fact that the SC happens to make a law that is just, right and moral etc does not in and of itself show that the Court acted properly. It is not the SC's role to make just laws. It's role is make sure that laws that are passed do not violate the Constitution. I would have no objection at all if every state passed a law that essentially making abortions legal on the same basis as set forth in Roe. Indeed, I would like to see that happen. Still I think it was a bad day when the Court decided to find a right to an abortion in the Constitution.


And for the record, as you know, even if the SC voted 9-0 to overturn Roe, that would not make abortion illegal. It would just allow states to decide the issue. There will be vary many states that would allow it. So the presence of 3 votes for overturnig Roe does not in any way suggest that the Court is on its way to making abortion Constitutionally prohibited.

But if it did, perhaps based on "evolving standards" of what "life" means, I suspect that you would not be defending their actions on the basis that they are acting under the same principles of Constituional jurisprudence that supported the Court's holding in Brown.

And what of the death penalty? You must be admit that it is a bit of a farce to have the SC changing its mind on this issue every few years. As Scalia properly argues, it shows what happens when justices decide that they need not feel constrained by "original intent" in this area.

*****

A few states have laws on the books banning abortion IF Roe v. Wade is overturned and similar bills are pending elsewhere.

I would decry the overturning of Roe but I also can understand that few decisions are absolutely rooted in solid judicial cement. That is especially true for Roe where debate and division continues three decades after the decision. There is no equivalent debate about the striking down of Separate But Equal.

And I have always viewed Roe as fundamentally flawed in its adoption of a medical model and misplaced categorization as a "Privacy" right. I agree with Rehnquist's dissent in Roe that privacy was not a relevant factor. The right should have been firmly grounded on autonomy, the right of a woman to choose how her body would or would not be used.

[pizza]

And I have always viewed Roe as fundamentally flawed in its adoption of a medical model and misplaced categorization as a "Privacy" right. I agree with Rehnquist's dissent in Roe that privacy was not a relevant factor. The right should have been firmly grounded on autonomy, the right of a woman to choose how her body would or would not be used.

The right had to be grounded on a medical privacy argument in order to force it into even a semblance of logic. Yours is a patently specious argument founded upon a specious concern. If a woman is genuinely concerned about how her body will or will not be used, she will employ readily available and effective birth control to avoid an accidental pregnancy, just as she will buckle up her seat belt in order to avoid an accidental injury if she's concerned about what happens to her body in an automobile accident. However, it isn't only her body that is affected by abortion; if the issue was just the use of her body alone, there would be no debate whatsoever.

[Ralph]

And I have always viewed Roe as fundamentally flawed in its adoption of a medical model and misplaced categorization as a "Privacy" right. I agree with Rehnquist's dissent in Roe that privacy was not a relevant factor. The right should have been firmly grounded on autonomy, the right of a woman to choose how her body would or would not be used.

The right had to be grounded on a medical privacy argument in order to force it into even a semblance of logic. Yours is a patently specious argument founded upon a specious concern. If a woman is genuinely concerned about how her body will or will not be used, she will employ readily available and effective birth control to avoid an accidental pregnancy, just as she will buckle up her seat belt in order to avoid an accidental injury if she's concerned about what happens to her body in an automobile accident. However, it isn't only her body that is affected by abortion; if the issue was just the use of her body alone, there would be no debate whatsoever.

*****

Seatbelts greatly reduce but can never eliminate the chance of serious injury in a crash.

Contraceptives fail and sex is often impulsive, especially among younger women. Your position simply is that if a woman becomes pregnant without wanting a child, it's her tough luck. That punitive attitude isn't shared by the majority of Americans.

I won't debate your last assertion: those who believe a fetus is a human being won't be persuaded to accept abortion as a right no matter what.

[pizza]

And I have always viewed Roe as fundamentally flawed in its adoption of a medical model and misplaced categorization as a "Privacy" right. I agree with Rehnquist's dissent in Roe that privacy was not a relevant factor. The right should have been firmly grounded on autonomy, the right of a woman to choose how her body would or would not be used.

The right had to be grounded on a medical privacy argument in order to force it into even a semblance of logic. Yours is a patently specious argument founded upon a specious concern. If a woman is genuinely concerned about how her body will or will not be used, she will employ readily available and effective birth control to avoid an accidental pregnancy, just as she will buckle up her seat belt in order to avoid an accidental injury if she's concerned about what happens to her body in an automobile accident. However, it isn't only her body that is affected by abortion; if the issue was just the use of her body alone, there would be no debate whatsoever.

*****

Seatbelts greatly reduce but can never eliminate the chance of serious injury in a crash.

Contraceptives fail and sex is often impulsive, especially among younger women. Your position simply is that if a woman becomes pregnant without wanting a child, it's her tough luck. That punitive attitude isn't shared by the majority of Americans.

I won't debate your last assertion: those who believe a fetus is a human being won't be persuaded to accept abortion as a right no matter what.

The point was that a woman truly interested in autonomy will take the appropriate steps to implement it. That includes the use of safety devices where relevant. Of course no safety device is foolproof but that's hardly a valid reason for irresponsibly avoiding them.

Impulsive behavior often leads to negative consequences. An impulsive shoplifting episode will normally lead to prosecution and some penalty even for otherwise law-abiding citizens. Most Americans accept that as a given. There is nothing punitive about bearing the consequences for lack of self-control.

There once were a substantial number of Americans who didn't believe Blacks were full-fledged human beings either but that didn't prevent society from eliminating the inhuman and disgusting practices of Jim Crow.

[Ralph]

Interesting, Pizza, that you put the responsibility for averting pregnancy on the woman. Certainly you follow a long history of blaming the woman while the guy walks away, usually scot (and cost) free.

There's no analogy between shoplifting and the consequences of sex including pregnancy. The situations are totally inapposite.

As to Jim Crow and racial discrimination, I don't know where you're seeing any relevance. Jim Crow fell to the force of law as well as to mounting public opinion. Without the constitutional guarantee of equality it's fatuous to believe segregation would have ended by popular demand.

And the right to an abortion is still a constitutional protection albeit one that has been watered down by the Supreme Court.

[pizza]

Interesting, Pizza, that you put the responsibility for averting pregnancy on the woman. Certainly you follow a long history of blaming the woman while the guy walks away, usually scot (and cost) free.

There's no analogy between shoplifting and the consequences of sex including pregnancy. The situations are totally inapposite.

As to Jim Crow and racial discrimination, I don't know where you're seeing any relevance. Jim Crow fell to the force of law as well as to mounting public opinion. Without the constitutional guarantee of equality it's fatuous to believe segregation would have ended by popular demand.

And the right to an abortion is still a constitutional protection albeit one that has been watered down by the Supreme Court.

You have a carefully calculated knack for missing the point. You raised the point of impulsive behavior as a mitigating circumstance for avoiding contraception. I showed that impulsive behavior can otherwise bear negative consequences and that it isn't an off-the-wall novel concept that's alien to our society.

I'm not "blaming" anyone for unwanted pregnancies, just pointing out the incongruity of thumping the drum for women's autonomy while at the same time turning a blind eye to her irresponsible behavior. Since it's the woman who bears the child and who aborts, it is true that the father's role should be considered and there you may have a point; maybe it's time to consider his rights. Why should the woman be the sole arbiter?

You apparently don't believe that fetal life is human life. My point is that societal views as to what constitutes human life are not carved in concrete. There was a time not very long ago when a fetus had no actionable rights. That's changed. There is no reason why a fetus or the state, if appropriate should be able to maintain an action against third parties but the mother herself should remain immune for the same violations.

You might find the following St. John's Law Review article of interest:

http://www.findarticles.com/p/articles/ ... i_n8758631

[Ralph]

Pizza,

First, thanks for the compliment that leads off your post. I have much respect for you and your praise means a lot.

Second, it took you THIS long to figure out I don't consider a fetus to be a human being? Oy vey!!

Third, you are right that little is carved in concrete. No dispute with me on that. BUT...the evolution of the law with regard to personal autonomy has been fairly consistent over the past half-century or so. And like it or not current constitutional law gives a man who impregnates a woman, even his wife, ZERO rights with regard to her decision to abort or not. That's not my opinion: it's solid doctrine (subjcect to change, of course).

And in all seriousness - and I do mean this with personal respect for you - we clearly have travelled in very different circles. Many of my female friends have had abortions - and that's the ones I know about who have discussed it openly. Perhaps you haven't ever talked one-to-one with women who made that sometimes difficult, sometimes easy choice. I could be wrong, of course.

Impulsiveness in having sex is not the same thing as an impulse to commit a clear statutory offense - shoplifting, road rage, listening to atonal music. And, frankly, if the differences aren't clear, I doubt I can ever convince you that they exist and have great significance.

But I really want to meet you someday in New York and I'll take you to a glatt kosher restaurant.

[Kevin R]

Well, it's certainly true that Madison waffled, deserting his original Federalist values. And in several instances including Judicial Review, the meaning of the Necessary and Proper Clause and the scope of the congresional Spending Power his take was categorically rejected by the Court.

I'm not sure he really waffled (the quote I posted was from 1788!). The bottom line is that the author erred in coupling Madison and Hamilton on judicial review (I hope it was from sloppy research and not a deliberate attempt at misinformation). But even Hamilton understood that judicial review was not judicial activism. One thing the author did not mention was Hamilton's warning (from the same paper) against the kind of activism of the Taney/Brennan/Blackmun school: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body” (emphasis is Hamilton's). By subverting the proper role of the legislature, the court is undermining both majority rule and the separation of powers (when that occurs, Madison warned in Fed 48, tyranny is the result).

And yes, courts have ignored his understanding of constitutional principles (what did he know about the Constitution anyway?). That is the problem. Courts act like super legislatures, shamelessly ignoring the system and principles established by the Framers.

[Ralph]

Well, Kevin, you paint with a very broad brush. But I enjoy your views.

Since Madison and Hamilton were for all intents the authors of The Federalist Papers (Jay only wrote three), I assume that he formally endorsed and advocated the principle of Judicial Review carefully laid out in No. 78.

"Judicial activism" is like the term "Law and Order" in Nixon's day. It means everything to some and nothing to others. It's imprecise and more of an epithet than a concept. Every semester in Con Law I wait for the inevitable first use of the term by a student and then I have a lot of Socratic fun with that person.

[Kevin R]

Well, Kevin, you paint with a very broad brush. But I enjoy your views.

Since Madison and Hamilton were for all intents the authors of The Federalist Papers (Jay only wrote three), I assume that he formally endorsed and advocated the principle of Judicial Review carefully laid out in No. 78.

"Judicial activism" is like the term "Law and Order" in Nixon's day. It means everything to some and nothing to others. It's imprecise and more of an epithet than a concept. Every semester in Con Law I wait for the inevitable first use of the term by a student and then I have a lot of Socratic fun with that person.

We do have fun around here!

I believe Jay authored 5 of the papers. I don't have my torn and tattered copy with me at the moment to double check

Madison and Hamilton had the same goal (ratification), but often different political views.

Yes, it can be a difficult term to define (just like word "person"). But it would be boring if we all agreed what it meant.

[Ralph]

I'm not good on numbers. Ever. Five is right.

My research assistant came up today with this undiscovered and unpublished correspondence between Hamilton and Madison on Judicial Review:

H: You must be aware that without the power of the Supreme Court to overturn an unconstitutional law, our System of Checks and Balances will be devoid of force.

M: So?

H: But I beseech you to support the view of every true Federalist to advocate this power which, in clear truth, will most rarely be utilized.

M: Right!

H: I received a cordial letter fromThos. J. fully supporting Our Federalist principle of Judicial Review.

M: Me too and he included a handsome brace of warm socks darned by that woman friend of his, is it Sadie something?

H: Sally Hemingway, if I recall. So are you on board?

M: Reluctantly but faithfully. You and I weathered the late War together and we will always be united in political practice.