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

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  •  Out of the mainstream (none)
    See two sides of an argument don't make both positions equally mainstream.

    Mainstream means consensus. And the consensus springs from the case law. Nothing supports the view you espouse in the SCOTUS case law. It is supported in NRO and the Federalist Society. But that shoul;d not surprise you.

    You are repeating talking points. GOP talking points. Explain how Lochner and Griswold are alike. Quote the cases and the reasoning. Let's see it.

    Lochner was not in the mainstream and Griswold was.

    A Republican, like drgrishka, will try to equate the cases.

    It is a Republican's easy game. But it shows that you have not done the work on the subject frankly.

    drgrishka is a Republican Federalist Society law student so I expec it from him. I don't know you.

    The SCOTUS is Extraordinary.

    by Armando on Mon Aug 08, 2005 at 02:10:29 PM PDT

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    •  Just because you like something (none)
      does not make it mainstream.  And vice versa.  lochner was as much of maintream as griswold was.  Lochner was 5-4 decision.  Casey was a 5-4 decision.  Scalia, Thomas, White & Rehnquits voted tooverrule Roe.  Souter, SCO, Kennedy, Stevens and Blackmun voted to not overrule it.

      The vote break-down is the same.  As much consensus on one as on the other.  

      before New Deal Lochner was re-affirmed numerous times.  That's consensus PLUS stare decisis.  But that didn't hold back the Justices from reversing course.

      •  Lochner (none)
        was never mainstream. But even if it was, it isn't now.

        Griswold however . . .  

        The SCOTUS is Extraordinary.

        by Armando on Mon Aug 08, 2005 at 03:25:12 PM PDT

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        •  haha (none)
          Why wasn't Lochner mainstream?  Because you said so?  Lochner was good law for about 30 or so years (until about late 30s).  That means it was settled, accepted law that enjoyed the force of precedent and stare decisis.

          Griswold has been good law for around 40 years.  It enjoys the force of precedent and stare decisis.  They are exactly the same in terms of their history.

          •  Lochner (none)
            was not mainstream because it was a ruling pulled out of thin air. It comes from no tradition of case law that supports it. It is such a departure from previous law, and draws conclusions that are wholly and solely policy driven.

            The same is not at all true of Griswold.

            The SCOTUS is Extraordinary.

            by Armando on Mon Aug 08, 2005 at 03:38:40 PM PDT

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    •  Distinguish Lochner and Casey (none)
      And I am not a law student, thank you very much.  that part of my life is over with.
      •  Economic vs. Social substantive DP? (none)
        Okay, hows this- the commerce clause and several other positive elements in the constitition (trademark and patent powers, money and coinage, etc.) indicate a Constitution that anticipates governmental activism in the economic sphere.

        Comparatively, the personal life of citizens is protected by broad negative prohibitions against state action.

        Thus substantive due process is properly broader in personal rather than economic matters.

        Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

        by Myrkury on Mon Aug 08, 2005 at 03:33:54 PM PDT

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        •  What about the Contract Clause (none)
          And even if the Constitution anticipates that the govt will act in economic sphere, teh anticipated actions are quite limited.

          On top of that, it is hard to say with a straight face that the Constitution did not anticipate govt acting in the moral sphere, where it has acted from time immemorial.

          •  geez, doc, I've been out of law school for 20 yrs (none)
            and even I recall through the fog of senility that the Contract Clause was given less respect than a hill of beans - kind of like the 9th Amendment (the enumeration of certain rights in the Constitution shall not be construed to deny others retained by the people, for you non-lawyers) -

            if economic liberty were equated by the founders with personal liberty, wouldn't some economic liberty rights be included in the Bill of Rights?

            and didn't the Free Exercise and Establishment clauses not only anticipate government acting in moral spheres, but prohibit government from acting in certain moral spheres?

            "I'm not a member of an organized political party - I'm a Democrat." Will Rogers

            by mississippi scott on Mon Aug 08, 2005 at 05:12:03 PM PDT

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            •  exception that prooves the rule (none)
              The big Contracts Clause case, IIRC, is UNITED STATES TRUST COMPANY OF NEW YORK, TRUSTEE v. NEW JERSEY ET AL., 431 U.S. 1, atarting at 14 (1977):

              At the time the Constitution was adopted, and for nearly a century thereafter, the Contract Clause was one of the few express limitations on state power. The many decisions of this Court involving the Contract Clause are evidence of its important place in our constitutional jurisprudence. Over the last century, however, the Fourteenth Amendment has assumed a far larger place in constitutional adjudication concerning the States. We feel that the present role of the Contract Clause is largely illuminated by two of this Court's decisions. In each, legislation was sustained despite a claim that it had impaired the obligations of contracts.

              Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934), is regarded as the leading case in the modern era of Contract Clause interpretation. At issue was the Minnesota Mortgage Moratorium Law, enacted in 1933, during the depth of the Depression and when that State was under severe economic stress, and appeared to have no effective alternative. The statute was a temporary measure that allowed judicial extension of the time for redemption; a mortgagor who remained in possession during the extension period was required to pay a reasonable income or rental value to the mortgagee. A closely divided Court, in an opinion by Mr. Chief Justice Hughes, observed that "emergency may furnish the occasion for the exercise of power" and that the "constitutional question presented in the light of an emergency is whether the power possessed embracees the particular exercise of it in response to particular conditions." Id., at 426. It noted that the debates in the Constitutional Convention were of little aid in the construction of the Contract Clause, but that the general purpose of the Clause was clear: to encourage trade and credit by promoting confidence in the stability of contractual obligations. Id., at 427-428. Nevertheless, a State "continues to possess authority to safeguard the vital interests of its people... This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court." Id., at 434-435. The great clauses of the Constitution are to be considered in the light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time. Id., at 443.

              This Court's most recent Contract Clause decision is El Paso v. Simmons, 379 U.S. 497 (1965). That case concerned a 1941 Texas statute that limited to a 5-year period the reinstatement rights of an interest-defaulting purchaser of land from the State. For many years prior to the enactment of that statute, such a defaulting purchaser, under Texas law, could have reinstated his claim to the land upon written request and payment of delinquent interest, unless rights of third parties had intervened. This Court held that "it is not every modification of a contractual promise that impairs the obligation of contract under federal law." Id., at 506-507. It observed that the State "has the 'sovereign right... to protect the... general welfare of the people'" and "'we must respect the "wide discretion on the part of the legislature in determining what is and what is not necessary,"'" id., at 508-509,  quoting East New York Savings Bank v. Hahn, 326 U.S. 230, 232-233 (1945). The Court recognized that "the power of a State to modify or affect the obligation of contract is not without limit," but held that "the objects of the Texas statute make abundantly clear that it impairs no protected right under the Contract Clause." 379 U.S., at 509.

              Both of these cases eschewed a rigid application of the Contract Clause to invalidate state legislation. Yet neither indicated that the Contract Clause was without meaning in modern constitutional jurisprudence, or that its limitation on state power was illusory. Whether or not the protection of contract rights comports with current views of wise public policy, the Contract Clause remains a part of our written Constitution. We therefore must attempt to apply that constitutional provision to the instant case with due respect for its purpose and the prior decisions of this Court.

              In English, this means: If you aren't Bond Counsel, go back to sleep.

              Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

              by Myrkury on Mon Aug 08, 2005 at 06:23:02 PM PDT

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            •  Yes, but (none)
              I know that Contract Clause doesn't get much respect much like the 9th.  But a) that doesn't mean that it should be that way and b) it's disingenepus to argue (not that you did, but others did) that 9th should be afforded lots of respect while Contacts Clause should be essentially ignored.

              As for including economic liberty in the BoR, The retort is that there was no need because the Commerce Clause was included in the original text of the Constitution and was actually one of the very few limitations on State action.

              Finally, it is true that the government cannot act in certain moral spheres, i.e., it cannot proscribe "immoral religions" or "immoral political view."  But conduct is different.  No matter what your religious belief is, you can't have sex with kids even if your religion requires it.  Soyes government is excluded from some spheres, but not from all moral legislation.

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