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View Diary: Extremist Conservative Legal Reasoning on Abortion Rights (269 comments)

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  •  Bowers was overuled (none)
    It did not evolve.

    And why you think a Living Constitution theory is inconsistent with what I wrote is not clear, other than the obvious one - you are a Republican and don't understand what the term means.

    The SCOTUS is Extraordinary.

    by Armando on Mon Aug 08, 2005 at 11:28:27 AM PDT

    [ Parent ]

    •  Wow... how profound (none)
      Bowers was overruled!  Gee thanks for that deep thought.  The question is on what grounds?  Apparently either because 1) the meaning of the Constitution changed or 2) the complement of Justices changed.

      If the former, then the Constitution apparently changes every 20 years or so.  If the latter, it just means that the justices can do what they want whenever they want (assuming they have a case before them) completely unbounded by precedent if they happen not to like it

    •  Nonsensical response (none)
      The comment/question is about the Constitution "evolving."  The response is that a case didn't evolve, it was overruled.  The response has nothing to do with the question above.

      Of course cases don't evolve.  The Constitution clearly does.

      "I don't know how to put this ... but I'm kind of a big deal."

      by Slim Tyranny on Mon Aug 08, 2005 at 11:37:30 AM PDT

      [ Parent ]

      •  I disgaree that either evolves (none)
        But thanks for seeing the absurdity of the response.
      •  Uh (none)
        He mentioned Bowers. So I responded.

        Nonsense from you. But see, I know you too.

        The SCOTUS is Extraordinary.

        by Armando on Mon Aug 08, 2005 at 11:42:25 AM PDT

        [ Parent ]

        •  Yes, he mentioned Bowers (none)
          But his question was on the Constitution evolving.  You said that the case didn't evolve, it was overruled.  Again, see the illogic of that response.

          "I don't know how to put this ... but I'm kind of a big deal."

          by Slim Tyranny on Mon Aug 08, 2005 at 11:45:50 AM PDT

          [ Parent ]

          •  Not at all (none)
            The Constitution evolves is one concept.

            Cases are overruled because they were wrongly decided.

            Two different concepts.

            I know it is hard for you to imagine there could be more than one.

            The SCOTUS is Extraordinary.

            by Armando on Mon Aug 08, 2005 at 11:53:20 AM PDT

            [ Parent ]

            •  But what informs your decision (none)
              whether the case was rightly or wrongly decided?  Surely, it must be the Constitution.  And if so, are we to conclude that the Constitution means solely what 5 people say it means?  Or that it evolves as fast as 5 people say it does?  Where is the line?
      •  The constitution itself (none)
        barring constitutional amendments, does not evolve.

        Interpretation of the constitution does, due to the consideration of new facts and changing or new precident.

        Court decisions build on each other.  It would be hard to have many of these decisions we have to today without the court relying on a past decision, which itself relies on a past decision, which itself relies on a past decision, and so on.

        In this case, one can argue that the constitution itself does not evolve...it is what it is.

        However, our understanding of the meaning of the constitution becomes clearer as cases are decided are precidents are set or, on occassion, changed or reversed.

        However, those changes and reverses are usually done because something dramatic has changed since the origional ruling....facts have changed...a constitutional amendment as been added...another line of precident which didn't exist before influences the legal arguments of the decision...something.

        I'm not sure how Armando would answer to this message...he is the lawyer, i'm just a person who had a couple of conlaw classes in college.

        However, this is how I would interpret what he is trying to get accross.

        •  Well (none)
          Saying the "constitution didn't change, but our interpretation of it did, and therefore what was constitutional 15-20 years ago, no longer is" is sophistry.  It is just a word game in that situation to say, "no, no, don't worry the Constitution didn't change, but its words just have a new heretofore unknown meaning."

          Yes, cases build upon one another.  But cases like Roe and Lawrence (especially the latter) come out of nowhere.  It's not like first there was a right to abortion in 1st 5 weeks, then it was extended to 10 weeks, etc.  It was just announced that there is one and that it extends through the 1st trimester unfettered.  

          Same with Lawrence.  Not only did it not build on something, it actually overruled precedent, and a recent one at that.

          That is just dishonest way of constitutional adjudication

          •  I Agree (none)
            That is sophistry. It is not my argument on the Living Constitution.

            The SCOTUS is Extraordinary.

            by Armando on Mon Aug 08, 2005 at 12:02:27 PM PDT

            [ Parent ]

          •  asdf (none)
            Of course constitutionality may change on facts.

            Laws prohibiting yelling "fire" in a movie theater are constitutional, despite the fact that the founding fathers could never have conceived of movie theaters when the constitution was ratified.

            Playing "lets pretend we're in 1789" when deciding cases doesn't work, as the above, and many other examples, will show.  Thus the importance of precident.

            And Lawrence and Roe weren't made out of thin air. Both were based on Griswold, which itself, I would imagine, was based on past precident of some sort.  Also, the fact that no precident exists doesn't mean that precident cannot be created, backed by precident that does exist.  This is what happened in Roe.  Precident was created where none existed, backed by the existing precident of Griswold.

            Lawrence, while overruling Bowers, relied on Griswold to do so.

            •  I disagree with your analysis (none)
              the question is not whether the founders envisioned movie theaters of the Internet.  the question is what did they try to limit the government from doing.  Thus, the fact that now we have media on the net does not really change the analysis.  The founders attempted to insulate the media from gov't regulation.  And it matters not whether it appears in print on TV or on the net.

              As for Lawrence, it couldn't be based on Griswold, since Bowers was decided about 20 years AFTER Griswold and expressly took the position opposite of the one reached in Lawrence.  No developments since Bowers suggested that it was wrongly decided and that Lawrence logically follows.

              •  Well (none)
                if the court felt that there was a conflict between the precident in Griswold and the precident in Bowers, since Griswold is the older case, it would seem to indicate that that is the precident they should follow.

                Basically Griswold said that a person has the right to privacy, and Bowers basically said no you don't, at least in certain circumstances, and that presents an obvious conflict.

                Yes, Griswold only dealt with contraception, but it has been expanded since then, and i'm sure it has been expanded since even Bowers was ruled.

                •  Actually it's teh opposite (none)
                  Court generally follow newer cases because they take account of the older ones.  And Bowers did that with resoect to Griswold, but found that griswold does not extend to homosexual sodomy.
                  •  But what Lawrence ruled (none)
                    is that, yes, Bowers extended it to homosexual sodomy (well, sodomy in general really) basically without giving any good reason for it other than "moral standards of the community."

                    Community standars has since been deemed not a valid reason, on their own, for banning something since the time of Bowers.

                    •  Except that they haven't (none)
                      Never has SCOTUS decided that community standards are insufficient to ban certain behavior (until Lawrence that is).  

                      But even tehre, it was dishonest as far as its decision went.  Why is it that we do not allow (unfortunately :)) topless sunbathing in many places?  Community moral standards.  That one community may allow it, does not obligate another one to do so.

                      Why is it that in some states age of consent is 14 while in others it is 16 and yet others it is 17 or 18?  Community moral standards.  Again, just because Utah thinks it is morally perfectly OK for adults to have sex with 14 year olds does not make such an activity a protected constitutional right, despite the fact that higher age restrictions are based on little more than moral values.

                      Indeed, most of legislation is based on moral values.  We disallow prostitution on those values.  We disallow alcohol consumption for those under 21 on those standards.  We disallow strip joints on those standards.  Heck, most tort laws and rules are based on moral judgments.

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