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View Diary: Extend Debate on Alito (202 comments)

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  •  Nope (none)
    I agree with political results of Roe and lawrence.  But I despise the machinations to get there.  These decisions have no basis in the constitution and are an exercise in raw judicial powrgrabbing.

    As for common law.  It is judge made.  but every first year law student knows that common law can be changed by statutory enactment.  that's why "constitutional common law" is an oxymoron.

    •  But... (none)
      I practiced law for over a dozen years before getting into teaching.  I also clerked in a position where I could write some draft opinions.  I can assure you that there are plenty of areas of law that are far from cut and dried, including and especially Constitutional law.

      All law of any sort, constitution, statute, rule, ordinance, is necessarily going to contain some vagueness and uncertainty, constitutions more than the others.  People want a constitution to be filled with broad first principles, as opposed to a blueprint of micromanagement for their lives, given the difficult steps needed to change it.

      It's easy to rail at cases like Griswold (which I consider more legally dubious than Roe or Lawrence; once Griswold was decided as it was, Roe and Lawrence flow from them) but the decision is based on and is consistent with first principles in the Constitution.

      Is it possible for the SCOTUS to stray therefrom?  Theoretically, of course it is.  Have they?  I think less so than trial courts, which need to do so daily.  

      One of the things that always frustrated me when I was in law school was how a professor would never seem to answer a question.  Someone would ask, "How would a case involving x, y and z come out?" and the reply would be something like, "It depends."  As I've gotten older, I've come to accept that there will always be grey areas of law, partly because we want/need it that way and partly because we have litigants who are constantly pushing the envelope(s) in opposite directions across the table.

      "I intend to live forever. So far, so good." Steven Wright

      by gsbadj on Tue Jan 24, 2006 at 02:28:47 AM PST

      [ Parent ]

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