Roe & Casey overturned.
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McCarthy: Roe was never law.
It was never law at all. The very able lawyers who have defended Roe over the decades have eschewed arguments rooted in the Constitution. Roe has been defended as precedent: The decision commanded deference because it happened, not because it was compelling — or even coherent. It could never be justified on its own terms as linear, logical, legitimately rooted law.
Progressives have thus made a talisman of stare decisis, the doctrine of respect for precedent. They would have you believe, at least when it’s a precedent they like, that stare decisis is Latin for “don’t you dare touch this settled law.” Like the rest of the Roe bag of tricks, that’s laughable as a legal argument — we’ve all noticed that Dred Scott, Plessy v. Ferguson, Korematsu, and other precedents in the Court’s lowlight reel were reversed by the Court. More to the point, though, stare decisis has never been a mandate to uphold precedent; it is a multipart test to assess which precedents should be retained.
It’s a test that Roe was particularly ill-suited to survive.
We haven’t been under Roe for, now, 30 years. The ruling was so unstable and indefensible that, in Casey (1992), a reluctant, razor-thin majority of the Court could save it only by gutting its rickety foundation while maintaining its bottom-line holding — again, in the manner of “because I say so” diktat, not legal reasoning.
And what did Casey replace Roe with? A newfangled “undue burden” test — essentially asking: Does a regulation so burden resort to the abortion “right” as to render it illusory? Notice, however, that it is the nature of such a test to invite regulation and therefore to invite constant streams of challenges.
If we could keep abortion out of it for a moment, then, and think of this as a straight, legal stare decisis question, you had a ruling that was so galactically wrong that it had to be completely overhauled in less than 20 years. A ruling that was so unstable that it was subject to constant regulatory and legal challenge, and thus could not reasonably be relied on. And that’s just the legal landscape, before you ever get to the court of public opinion — the cultural and political arena in which Roe/Casey was never broadly accepted and was always the target of passionate dissent by much of the country.
Roe was not law and could never be defended as such. It has thus been defended by extortion, by the mob. It still is: The Court’s opinion was not even published before the “Night of Rage” planning was under way. The Left tried to prevent the ruling from issuing by an unprecedented leak of a draft opinion, patently intended to intimidate the justices — just as the Left destroyed the judicial-confirmation process over abortion with the intent of intimidating justices. In the weeks since the leak, we have had illegal protests against which a leftist administration has refused to enforce the laws (Roe having corrupted the Justice Department the same way it corrupted the law), and finally the attempted murder of Justice Kavanaugh — an utterly predictable event incited (to borrow the Left’s promiscuous use of that word) by the likes of the Senate’s Democratic Party leader.
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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Countering the "Not in the Constitution" argument.
James Madison, one of the principal architects of the new Constitution, closely followed this debate. On June 8, 1789, he gave a speech to Congress proposing the group of amendments that would ultimately become the Bill of Rights. While doing so, he directly addressed the Anti-Federalist/Federalist debate. "It has been observed also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration," he said, "and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure." Madison acknowledged that "this is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; But, I conceive, that may be guarded against. I have attempted it."
Madison's attempt became enshrined in the Constitution as the Ninth Amendment. Here is what it says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In short, unenumerated rights get the same respect as enumerated ones.
Today, most legal conservatives purport to be constitutional originalists. What that means for the legal debate over abortion is that any purported originalist must face the question of whether abortion rights may be considered to be among the unenumerated rights "retained by the people" that Madison's Ninth Amendment was specifically written and ratified to protect. Alito's opinion in Dobbs v. Jackson Women's Health Organization entirely fails to grapple with this necessary question.
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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@George-K said in Roe & Casey overturned.:
McCarthy: Roe was never law.
It could never be justified on its own terms as linear, logical, legitimately rooted law.
I think that was understood by just about all, even here at tncr.
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@George-K said in Roe & Casey overturned.:
Countering the "Not in the Constitution" argument.
What that means for the legal debate over abortion is that any purported originalist must face the question of whether abortion rights may be considered to be among the unenumerated rights "retained by the people" that Madison's Ninth Amendment was specifically written and ratified to protect.
Simple. It was enumerated, as murder. That is the starting point.
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I suspect Madison was fairly familiar with the Declaration of Independence. Life, liberty and the pursuit of happiness, would be very familiar concepts to him.
Always remember, Operation Valkyrie was an act of sedition.
Warning: I post things that interest me. Read and comment at your own discretion. -
@Jolly True, but he was known to apply it rather selectively.
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"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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@George-K said in Roe & Casey overturned.:
Let that sink in. SecDef: We will not obey the law.
I'm not sure he can do that.
Always remember, Operation Valkyrie was an act of sedition.
Warning: I post things that interest me. Read and comment at your own discretion. -
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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@George-K said in Roe & Casey overturned.:
@Jolly said in Roe & Casey overturned.:
I'm not sure he can do that.
Garland will be all over that, right?
Shirley, you jest
Always remember, Operation Valkyrie was an act of sedition.
Warning: I post things that interest me. Read and comment at your own discretion. -
The leftist indoctrination into righteous destruction of any and every conservative political principle continues unabated. And next time a conservative leaning miscreant entity gets naughty, it’ll be right back to terrifying existential threats to our very democracy.
The magic of the human mind is that they don’t even recognize the double standard.
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@George-K said in Roe & Casey overturned.:
Let that sink in. SecDef: We will not obey the law.
Insurrectiony!
Seriously, I imagine the military can continue to provide abortion services on their bases, no matter what that state’s laws may be. It’s Federal Property, kind of like how US Embassies in other countries are on US soil, technically.
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@LuFins-Dad said in Roe & Casey overturned.:
I imagine the military can continue to provide abortion services on their bases, no matter what that state’s laws may be. It’s Federal Property
That's right. Now, what if birthing person has an abortion on non-military property? Will the military turn xer over to local law enforcement?
(Did I do that correctly by the way?)
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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@George-K said in Roe & Casey overturned.:
@LuFins-Dad said in Roe & Casey overturned.:
I imagine the military can continue to provide abortion services on their bases, no matter what that state’s laws may be. It’s Federal Property
That's right. Now, what if birthing person has an abortion on non-military property? Will the military turn xer over to local law enforcement?
(Did I do that correctly by the way?)
If they are having an abortion, aren’t they the definition of non-birthing person?
Me/rry/Christmas
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@LuFins-Dad said in Roe & Casey overturned.:
If they are having an abortion, aren’t they the definition of non-birthing person?
Don't make me post that "Scanners" exploding head gif...
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Mini vent here. I have a number of friends who have posted some variation of “this is taking away a woman’s control over her body!” complaint. It totally misses the mark…
Those that are pro-life (like me) fully support a woman’s right to control her body, of course…it’s only that we see the issue as a question of whether or not it should be legal to end a prenatal human life. To me it’s clearly more important to protect life than to protect an elective medical procedure. It’s about protecting unborn children, not about restricting a woman’s rights.
But the debate will never end because both sides see the issue differently. Can’t solve that. I agree @taiwan_girl this will eventually be reversed way down the road, but until then I think it’s very correct to leave this to each state to decide. It’s hard to think of a clearer example of a tough issue that is appropriate to legislate at the state level.
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Maybe I'm missing something, but the way I understand the verdict, most protesters - from both sides - miss the point.
This was not a verdict about whether abortion is good or bad or whether it should be legal or not. It was about whether a right to abortion can be deduced from the constitution, or whether abortion rights (or lack thereof) have to be dealt with by law. Essentially, it's about whether there is a "natural right" to abortion, or whether it's something that the people decide, using the democratic process.
I do understand the practical consequences of the verdict, but it seems to me that one can agree (or disagree) with the verdict as both a "pro choicer" and a "pro lifer".
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@Klaus said in Roe & Casey overturned.:
Maybe I'm missing something, but the way I understand the verdict, most protesters - from both sides - miss the point.
This was not a verdict about whether abortion is good or bad or whether it should be legal or not. It was about whether a right to abortion can be deduced from the constitution, or whether abortion rights (or lack thereof) have to be dealt with by law. Essentially, it's about whether there is a "natural right" to abortion, or whether it's something that the people decide, using the democratic process.
I do understand the practical consequences of the verdict, but it seems to me that one can agree (or disagree) with the verdict as both a "pro choicer" and a "pro lifer".
Under no circumstance will constitutional logic interfere with culture war issues decided by the Supreme Court. If a case makes it to the Supreme Court, culture wars supersede the constitution. Just ask the justices. How else is one supposed to understand predictable differences in their votes? Different understandings of the constitution, or different present day opinions about how the law ought to be?
