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View Diary: America is Pro-Choice, Any Questions? (194 comments)

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  •  And why, exactly, is the opinion of SCOTUS (0+ / 0-)

    any better or more valid than mine?

    The argument here is one over Federalism. This ought to be a state issue because it's not explicitly codified anywhere in the Constitution or the BoR, since that's what the 10th Amendment says. The point isn't 'rolling back the law,' because there isn't any law here in the first place - it's a bunch of legal conjecture and conjuring. The Constitution and the Bill of Rights aren't constructed with the intention to create a hodgepodge of 'hidden' rights that we can stumble upon simply by chance or luck - the wording is very explicit and very deliberate, for very specific reasons.

    Agreeing with the outcome of a decision doesn't necessarily mean that the decision was rightly founded. Going on a treasure hunt for new rights, as the SCOTUS has tended to do since the days of FDR, renders the BoR and the Constitution totally moot. Either play by the rules, or specifically and deliberately change the rules - but the SCOTUS isn't the tool we use for lawmaking.

    •  Try the Ninth. (0+ / 0-)

      The Enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      Picture a legal scholar pondering an issue from a new perspective, and she sees that if we have a right to A, we should have a right to B. Do we have the right to B until the legislature, with due deliberation, takes it away; or do we not have the right until the politicians give it to us?

      the SCOTUS has tended to do since the days of FDR, renders the BoR and the Constitution totally moot. Either play by the rules, or specifically and deliberately change the rules - but the SCOTUS isn't the tool we use for lawmaking.

      I regard this as Borkum, the invention of an arrogant Conservative who uses his "brilliant legal mind" to find ways to pretend the Original Intention of the Founding Fathers is the exact opposite of what they wrote. I think that the Earl Warrens, the William Brennans, the Harry Blackmuns were trying to bring back the understanding of the founders. Can you argue from specific cases that the Borks, the Rehnquists were closer to their aspirations?

      I'm not asking you to take the country back, I'm asking you to take it forward-Van Jones.

      by Judge Moonbox on Sat Aug 23, 2008 at 07:14:06 PM PDT

      [ Parent ]

      •  I like the 9th amendment too, (0+ / 0-)

        but the context of the Bill of Rights is a constriction on Federal power rather than on the 'general powers of government.' Fundamentally, I agree with you - but the final qualification on rights is made by the 10th Amendment, which permits the states to do 'pretty much whatever' so long as the Constitution doesn't reserve the power for the Feds.

        I don't contend to have a brilliant legal mind. I'm a mathematician, not a judge or a lawyer. That doesn't, of course, disqualify me from having an opinion on the matter. I make no mention, if you'll note, to what the 'intentions' of anyone happen to be. The point is that the law only can go as far as what it says - and trying to interpret what other people wrote will always guide us down a path of ambiguity. Why was Blackmun right and Rhenquist wrong? Or was Rhenquist right and Blackmun wrong? It's wholly subjective, unless you look at precisely what the text says. Words don't lie, and laws are crafted with great explicitness in order to keep people from 'misinterpreting' what they are intended to do.

        I don't really care what the intentions of the founders happened to be. They're dead, and cannot speak for themselves, so their writings and their laws are left to speak for them. But law isn't written like a novel - it's not 'open to interpretation.' It's a black and white, dispassionate system out of necessity.

        So really what we're looking at is a 'right to privacy' which, by the 9th amendment, is retained by the people - but only in regards to Federal intrusion (as the BoR is an explicitly FEDERAL document). Which, by my reading at least, would imply that the federal government doesn't have ANY legal say over the issue of abortion.

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