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

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  •  By specifying that both rely on (none)
    "substantive due process."  You may want quotes, but if you really do, go look them up.

    In any event this is more coherent than most of the drivel you post.

    •  Substantive due process (none)
      means Lochner for you? Yes, you are not a Republican are you. Puhleeeaze.

      The SCOTUS is Extraordinary.

      by Armando on Mon Aug 08, 2005 at 03:23:12 PM PDT

      [ Parent ]

      •  How is it not? (none)
        The Court talks about "liberty of person or of free contract."  It went on to say that "There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker."

        Even the Griswold court explicitly stated that Lochner was based on SDP.  And your argument is that it wasn't?!  You are not serious.

        •  That's not my point (none)
          Lochner is not wrong because it invokes substantive due process.

          MY point is that you equate substantive due process as being Lochner. Lochner is an improper application of substantive due process.

          The SCOTUS is Extraordinary.

          by Armando on Mon Aug 08, 2005 at 03:33:59 PM PDT

          [ Parent ]

          •  Because.... (none)
            Armando says so?

            It seems to me that only rights that a given person considers to be "really really important" fall under SDP.  What are really really important rights of course changes from person to person.  But no matter, we can just blithely say "Lochner wrong, griswold right, me Tarzan."  

            •  If you say so (none)
              No, the case law demonstrates it. Griswold did not result out of thin air.

              Lochner did.

              The SCOTUS is Extraordinary.

              by Armando on Mon Aug 08, 2005 at 03:39:56 PM PDT

              [ Parent ]

              •  That's silly (none)
                Lochner resulted out of thin air as much as griwold.  For Pete's sake, the Griswold court couldn't even point out where the right to privacy is.  At least by the time of Roe and Casey they settled on the notion that the right is in the 14th Am's protection of "liberty."  But during Griswold, they cited no less then 6 Amendments without telling anyone where in each of them or in combination the right to use contraception resided.  

                It was purely out of thin air.  No previous case held anything even remotely close.  They had to rely on search and seizure cases to get to Griswold, an unconvincing exercise.  It is a slapped together opinion reciting various cases that have really nothing at all to do with sexual privacy.

                It is exactly like Lochner.

              •  Things from thin air (none)
                I don't think it's fair to say that either the Lochner line of cases or Griswold were unanticipated and surprising developments in constitutional law. The former arose from the then-widely accepted view that laissez faire approaches were best for managing the national economy. The latter arose from a growing cultural recognition that a right to privacy does exist and that it touches quite strongly on reproductive decision-making.

                That said, I am a critic of the reasoning in Griswold. I believe that the Court could have and should have rested that holding on the Ninth Amendment. Justice Douglas' opinion is not very persuasive and I think that even those who support the outcome would agree that "penumbras and emanations" don't give much confidence in the intellectual foundation of the opinion.

                But, while Griswold is basically right in terms of its result, I disagree that acceptance of it indicates an acceptance of Roe and Casey. Recognition that the Constitution affords a zone of autonomy allowing the use of contraceptives makes sense.  Generally, no one is hurt by their use. Moreover, to the extent that any moral approbation historically attached to their use, that cultural norm changed by the middle of the century.

                With abortion, though, people are hurt - namely, the unborn baby and, in many cases, the mother. Second, there is still a widespread view that the use of the procedure except in extreme cases is inconsistent with our cultural morality.

                That is why I do not think that one can fairly equate abortion and the use of contraceptives when the question is about the reach of personal autonomy.

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