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View Diary: South Dakota Moves To Ban "ALL" Abortions (271 comments)

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  •  Sorry that's nonsense (none)
    Originalism is quite the opposite of imposing views on everyone else.  

    Under originalism, abortion debate, PAS debate, gay marriage debate, etc. will occur where they belong, in the states, and legislatures.  Under originalism the courts actually refuse to impose their beliefs on the rest of the country.

    It is the "living constitutionalists" who without regard for the views of the majority of the public feel that they can ban capital punishment, or strike down bans on D&X, or mandate gay marriage.  Who exactly is doing the imposing here?

    (And, btw, Scalia is not a natural law adherent).

    •  Evisceration of the courts (none)
      You got a problem with Marbury and John Marshall?
      •  Not really (none)
        But I have a problem with courts amending the Constitution when they think it has "evolved."  John Marshall did not suggest that he could re-write the Constitution whenever he didn't like its mandates.  Indeed, Marbury was about limiting the judiciary depsite Congress wanting to extend judiciary's reach.  "Living constitutionalists" take the exact opposite view.
        •  Minority rights (none)
          So-called "judicial activism" is the basis of our entire common law system.  The law developed more case-by-case than by legislation....

          It is you who advocates discarding a centuries-old judicial function.

          •  Nonsense (none)
            Common law and constitutional law are not one and the same.  If you recall, any common law decision can be overriden by legislature in a statute.  Because the legislature can do that, judges have some leeway in making policy judgments.

            That alone suggests that constitutional adjudication is different from traditional common law ajudication.

            Furthermore, there is no such thing as federal common law (with few exceptions).  That has been recognized as far back as Erie v. Tompkins.

            And finally, where in any Constitution, charter, or document is judiciary tasked with protecting minority rights?!  The reason minority has any rights is because by social compact (constitution) the majority decided to wall off certain areas from encroachment.  The judiciary did not create right to free speech or equal protection.  Those were majority created rights.  Abortion and gay marriage should be no different.

            •  Analogy (none)
              You are too literal.  Most states' civil law was a codification of the common law that had grown up on its own--for centuries--without any, or very little, legislative involvement.  Your view of the courts would eliminate any kind of meaningful role for the judiciary as a co-equal branch of government.

              Common law continues in the states every day, and in federal courts as well in certain areas.

              The protection of minority rights is our courts' greatest value--regardless of whether such a role emanated from the Bill of Rights or not.  Your view just begs the question of how the Bill of Rights is to be interpreted.

              Your view of the courts as quite limited in protecting individual freedom reflects your conservative values.  It appears you want to make adultery illegal--and prosecuted--and look favorably on alienation of affection actions.  Who is in favor of big government here?

              Do you really want to see Lawrence reversed?  I don't think it should be constitutional to put gays in jail.  You do.  We have different values.

              •  I do want to see Lawrence reversed (none)
                There is no constitutional right to privacy.  It is a figment o judicial imagination.

                Our values are not all that different.  I just choose to fight for my valusat the ballot box, and take my lumps when I lose.  You choose to ignore the ballot box and do an end run around ot by inventing new rights whenever the voting process doesnt give them to you.

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