Tuesday, November 01, 2005

You can't have it both ways

Can someone help me with this? Libs often say that the constitution is a "living and breathing document" that is supposed to evolve as our country grows and changes. BUT decisions like Roe v. Wade are dead and settled and cannot be revisited. Now all of you know by now I'm in a Republican in favor of Roe v. Wade so lets not turn this into an abortion discussion.

I just want some clarification, thats all.


At 1:04 PM , Blogger Eddie said...

I won't comment on abortion per se, but to say that certain issues are "dead (irony of the use of that word) and settled" is ignoring the History of the Court. Plessy vs. Ferguson was the law of the land for 50 years before the Supreme Court overruled it with Brown Vs. Board of Education. Faulty laws have been on our books for years, generally based on poor interpretation of the law in the first place and legislating from the bench.

Luckily, we shall now see some of that faulty law overturned as the court changes its makeups to strict constructionists who will not makeup law, or privacy rights that don't exist in the constitution.

At 2:46 PM , Blogger The Watchful One said...

I don't think many people are saying that Roe v. Wade can't be revisited but are rather saying that perhaps it shouldn't be revisited.


At 2:50 PM , Blogger Eddie said...

What the hell, you use to get 90 comments here, now it's only me hanging out?

At 3:17 PM , Blogger Ranting Republican said...

Basically - yes, Roe v. Wade is established precedent. It's on the books. BUT, it was a poor legal decision (I'm not saying a poor political decision, etc), but if you are strictly interpreting the Constitution, Roe v. Wade would never have been decided as it was. Now that it is precedent, it certainly can be overruled, just as Eddie explained using Plessy and Brown.

What the Dems are arguing right now is that revisiting Roe would be a violation of stare decisis and the importance of precedent. Which is an understandable argument, but the fact that it was a constitutionally erroneous decision to begin with gives the Reps something to complain about also. It's a big deal.

Roe was really nothing more than legislating from the bench. I'm not necessarily for overturning Roe, but I would like to see Planned Parenthood v. Casey overruled. I'm not for abortion on demand, I'm for restrictions on abortion. I don't want it illegal, but severely restricted to the point it's not used as birth control as it is now.

At 4:23 PM , Blogger stuffle said...

I don't want it illegal, but severely restricted to the point it's not used as birth control as it is now.

I just want it to be something that comes out of the state legislatures (or even federal legislature) as oppossed to something that is forced on us by a group of people manufacturing "rights" that are not specifically expressed in the constitution.

At 4:23 PM , Blogger Ranting Republican said...

Stuffle - couldn't agree more, but we're past that now.

At 4:35 PM , Blogger Eddie said...

The greater issue is we the people electing people who will vote for us. Unfortunately, with judges, they aren't elected, just appointed and can and do make mistakes. It's only when they make up law that is so blatantly far from legislative intent, such as quoting "international law" that the public gets insanely fed up with it.

At 5:36 PM , Blogger Tori said...

after doing some reading on the constitution...I do agree that Roe v. Wade was legislating from the bench. I assume they filed it under "right to privacy" but I just don't see it.

So do you think that Roe v. Wade should be overturned and then have the individual states battle it out in the legislature?

Unlike some of you on here, I have never taken a law class/constitution class and the last time I had anything remotely similar was my soph year in high school so I'm trying to brush up.

At 5:50 PM , Blogger stuffle said...

So do you think that Roe v. Wade should be overturned and then have the individual states battle it out in the legislature?

That would be the ideal scenario in my perfect world.

I really think that if that happened, there would be a handful of state that allowed absolutely no abortions, a handful that basically allowed abortions on demand, and a large majority of states that fell somewhere in the middle (abortions only in the case of rape or incest, or only before the first term with the conscent of both partners, or whatever).

At 5:54 PM , Blogger Ranting Republican said...

Roe v. Wade was filed under the so-called "right to privacy" line of cases, which the judiciary inferred from other amendments and decided Roe under the penumbra of such privacy amendments. It is bad constitutional law. Whether it should be overruled and turned over to the state legislatures or not is not likely to happen, although that is the most constitutional way of dealing with it.

Right now in Texas, we have the Marriage Amendment up for vote this month. Personally, I'm not entirely against gay-marriage, but I support the voting on the amendment because it is the people voting on it. It's not the courts telling us what we can and cannot do. These are issued which should be dealt with on the state level.

Right now, because Roe is such a huge political issue, it seems as though it almost must stay regulated at the federal level. Although, as stated, I do believe that it should have been left to the states. The problem then is that you can get into a Commerce Clause issue because women will be driving to different states to obtain an abortion.

For these reasons it appears that it will almost always be a federal issue and not up the state legislatures. Don't get me wrong, each state can decide restrictions (most of which were overruled in PPH v. Casey by the Supreme Court), but states can try...

At 6:11 PM , Blogger Tori said...

Thanks guys. I just always thought of Roe v. Wade from a personal standpoint...and thats why I never thought it should be overturned. But upon looking at what our Constitution does/doesn't say, its clear to me now that it was legislating from the bench.

What other decisions that have been handed down are bad con law? Eminent domain?

At 6:41 PM , Blogger stuffle said...

From the 5th amendment: nor shall private property be taken for public use, without just compensation

Eminent domain itself stands on pretty solid ground. Some more recent rulings on it seem to take the definition of "public use" to the extreme to include new Wal-Marts or condo's or crap like that.

That's just my non-legal opinion (I don't even pretend to play a lawyer on TV)...

At 6:55 PM , Blogger James Manning said...

This is what I am not understanding. Roe Vs Wade was ruled under a right to Privacy thing-a-ma-jig (sorry, I'm not a lawyer). Now, I'm allowed to seek whatever medical treatment I want and refuse whatever medical treatment I want. So how abortion any different? I know there is the fetus and they don't have a voice and there are some moral issues to deal with there, but shouldn't that moral issue be left to the individual. And I don't argue that there shouldn't be some restrictions, but advocating for the end of abortion, are we not saying that the government has the right to regulate what we do with our body?

It seems funny how people don't want the government restricting their rights to a gun but are more than willing to have the government restrict what we can do with our own bodies.

At 7:04 PM , Blogger stuffle said...

James - the argument would be that the "right" to privacy is not an actual right at all, and was manufactured by the court. There is no such right actually enumerated. Thus, the whole footing for Roe is tenuous.

OTOH, the second amendment is pretty clear: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Some people I have argued with state that this applies only to the members of the military (focusing on the "well regulated Militia" part of the amendment). However, the amendment says "the right of the people to keep and bear arms", thus, in my mind, applying to all people.

I have no idea how courts have ruled on this (also not being a lawyer), but in my narrow, simple minded view, that is how I would look at both of the issues you mentioned.

At 7:33 PM , Blogger Ranting Republican said...

James - the difference is that in absence of a medical emergency for the mother, an abortion is not technically medical treatment - it's elective as you could say.

I find it funny how the Dems always say (specifically Howard Dean in a press conference today) that they want the government out of the individual rights of the citizens -- but only in abortion cases. If they really cared about getting the government out of our lives, why won't they let us decide to put our own money in private accounts for our own retirement.

As for the gun argument - that right is explicitly enumerated in the Bill of Rights of the Constitution. The "right of privacy" is not in the Constitution.

Stuffle - the courts tend to try and avoid 2nd amendment cases in recent judicial history. The last fairly relevant case was in 1990 which held that "the people" as worded in the 1st, 2nd, 4th, etc., Amendments all mean the same thing..."THE PEOPLE" - the clear and unambiguous language provided.

This case obvsiouly negates the argument that "militia" is only used in reference to the military -unless those arguing are willing to stipulate that only the military has the right to free speech, free religion, freedom from unlawful searches and seizures, etc.

At 9:10 PM , Blogger Tori said...

i am learning so much about the constitution from ya'll, thanks! (that ya'll is for RR and A-L)

At 8:25 AM , Blogger Eddie said...

The abortion argument has to do with rights of the baby, a human being, vs. rights of the mother. Tori said she doesn't want to talk about it, so I will do my best not to say anything else.

I don't think abortion should be handled differently than any other crime. In some cases, federal law supercedes state law, such as it does in discrimination cases and the like. So, I have no problem passing a federal law banning what many assume is murder. It would supercede state law.

At 10:34 AM , Blogger Tori said...

I decided I want to talk about it so we can have it out.

I don't think people will change their minds, but I recently did....only that its bad law.

What I've been thinking about now is the spousal notification issue.

At 10:40 AM , Blogger Eddie said...

I agree that it's bad law. However, it's not uncommon for people to change their mind on this issue. Many in the pro life movement, not you perhaps, use to
1. have an abortion
2. were vehemently pro choice

So, while I am not arguing that you ever will, I am just saying that it does happen often. However, it typically happens one way, pro choicers become pro life. Outside of Democrat polticians looking to run for national office, rarely does it go the opposite way. Pro lifers are not allowed, and outright shunned, from the Democratic party. It never use to be that way, even in the 80's.


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