The Revolutionary War

[101A]

That's incorrect. Roe was before the Supreme Court of the United States because a Texas law prohibited Norma McCorvey from having an abortion. McCorvey's individual case aside, the Texas Legislature had clearly acted in that realm and McCorvey's suit challenged that law. The Supreme Court didn't just unilaterally decide whether to prohibit states from outlawing abortions -- the Court was specifically asked to decide whether a State could ban abortion without depriving a woman of a cons utional right (there, a right to privacy).

Moreover, Roe didn't invent the idea of a right to privacy as a necessary part of the protections afforded by certain portions of the Bill of Rights; that notion had been recognized several years earlier in Griswold v. Connecticut, a case in which the Court held that a state would violate the privacy rights of individuals by prohibiting the use of contraceptives.

Putting Griswold (precedent) up against the question presented in Roe, the Court decided 7-2 to strike down the Texas law. I don't disagree that the trimester construct of Roe is an endeavor in activism by Justice Blackmon, who fancied himself a medical expert, but I completely disagree that the legal determination in Roe -- that a State cannot outlaw abortion -- is activist; it is the determination of a legal question concerning the extent to which a legislature's power is limited by an individual cons utional right recognized in earlier cir stances.

That some don't like that decision has become a rallying cry to denounce liberally-minded judges as activists. I think that it really is a complaint that the decision didn't come out the way the majority (or perceived majority) wanted it to. And that, in a sense, is exactly my point -- where an individual in the political minority believes he or she has a particular cons utional right to do (or not do) something and has no practical means to vindicate that right through legislative action, what means should exist to vindicate the right other than the courts? If there is no court to determine that the legislature has acted in a way that diminishes or impairs cons utional rights, how on Earth will that right ever be capable of vindication. In arguing for ratification of the Cons ution, Madison explained in Federalist 51 the need for checks and balances among the branches of a tripar e government; couple that with the general idea in Federalist 10 that the Cons ution was intended, among other things, to protect against the "tyranny of the majority," and it becomes an immediately sensible idea to vest a check on legislative power in the judiciary, which, in the federal system, is the only non-resposive branch of the government. Given the problems that created the need for Revolution in the first place, it would stand to reason that the Founding Fathers believed implicitly that those who were political minorities should have recourse to vindicate rights through means other than the popularly-elected branches of government. Notions of judicial review, while articulated expressly in Chief Justice Marshall's opinion in Marbury v. Madison, were not unilaterally created by Chief Justice Marshall. The idea is apparent in several of the Federalist papers, suggesting an understanding on the part of Hamilton, Madison, and Jay that the check of judicial review was implicitly a power provided to the judiciary in the Cons ution.

I'm in over my head with you, FWD, but I understand what Roe did in striking down a state's law. My point was that the Federal legislature had not, in my opinion, addressed abortion in the cons ution, and that because of (gonna bring WC back into this) the 10th amendment, the Supreme Court should have had no jurisdiction in the case. Stretching the cons ution beyond the reasonable limits is the Judicial Activism of Roe.

If there was an amendment in the Cons ution guaranteeing a right to an abortion, like there is an amendment guaranteeing a right to not be discriminated against, specifically, THEN the court would not be activist - it would simply be doing its job.

[101A]

Moreover, Roe didn't invent the idea of a right to privacy as a necessary part of the protections afforded by certain portions of the Bill of Rights; that notion had been recognized several years earlier in Griswold v. Connecticut, a case in which the Court held that a state would violate the privacy rights of individuals by prohibiting the use of contraceptives.

Also, that paragraph puts you on record as having actually thought about Roe; now you can't be on the Supreme Court, Counselor.

[FromWayDowntown]

I'm in over my head with you, FWD, but I understand what Roe did in striking down a state's law. My point was that the Federal legislature had not, in my opinion, addressed abortion in the cons ution, and that because of (gonna bring WC back into this) the 10th amendment, the Supreme Court should have had no jurisdiction in the case. Stretching the cons ution beyond the reasonable limits is the Judicial Activism of Roe.

But it does become a federal issue because the Fourteenth Amendment incorporates fundamental rights to the States and precludes state legislatures from eviscerating those rights. It would be nonsensical to say that the Tenth Amendment somehow prohibits the Supreme Court of the United States from considering whether a state enactment is impermissible when the right to be vindicated is one that is ensured by the federal cons ution. At that point, you might as well say that the federal cons ution is just advisory to the states. Clearly, that isn't the case.

If there was an amendment in the Cons ution guaranteeing a right to an abortion, like there is an amendment guaranteeing a right to not be discriminated against, specifically, THEN the court would not be activist - it would simply be doing its job.

That strikes me as an obscenely narrow view of the Bill of Rights and the other amendments to the Cons ution. The broad language used to frame amendments requires judicial construction by courts considering the existence of a claimed right. To conclude otherwise, it seems to me, would necessitate a Cons ution with thousands and thousands of amendments to address the many things that we societally agree are protected (though not expressly) by the existing language. We're not talking about creating rights out of wholecloth; we're talking about examining broad language to determine if particular rights are within the scope of that language. I see a basic difference in those two concepts. If you don't, I guess we'll just have to agree to disagree.

I'll trust the long-recognized understanding that the Framers believed their do ent was flexible and not exhaustive; I maintain that the argument that the need for express delineation of every specific right vested by the Cons ution is the fairly recent construct of those who simply dislike the decisions that the courts are making.

And, to that end, I'll also suggest that the broad reading of cons utional language is a staple of both sides of the political spectrum. For instance, the Second Amendment does NOT guarantee an individual the right to possess any firearm he wishes; it EXPRESSLY prohibits the government from totally disarming the public. That is, saying that the government cannot deprive the People of the right to bear arms is not the same as saying that the government cannot limit the number or type of arms that a person might bear. It's a nuanced point, I'll grant you, but the express language of the Second Amendment would seem only to limit the government's ability to take away all arms. In that sense, isn't it suggestive of the very same sort of activism you're complaining about for those on the right, who maintain that the Second Amendment creates a safe harbor for ALL weapons, to argue that any governmental restriction on firearms is uncons utional? Aren't we arguing then about what that language means?

If we're going to argue about what the language means, isn't it permissible to consider whether the effect of a number of amendments (the First, the Third, the Fourth, the Ninth) is to create a zone of privacy that protects the private doings of individuals from governmental infringement? How come nobody ever argues that the decision in Griswold is somehow indicative of judicial activism -- after all, there's nothing in the Cons ution that expressly deprives a State of the right to outlaw contraceptives.

[FromWayDowntown]

Also, that paragraph puts you on record as having actually thought about Roe; now you can't be on the Supreme Court, Counselor.

Trust me, there's much more than that to keep me off the Supreme Court.

[FromWayDowntown]

My point here isn't to run off on defining judicial activism or defending courts.

I do think, though, that if someone is going to claim a resort to legal process as an alternative to revolution in an effort to change laws, we should, at the very least, determine what legal process is. That conversation, it seems to me, necessarily brings about a discussion about the roles of courts and legislatures and the extent to which a court might (or should) be called upon to invalidate legislative acts that infringe upon protected rights.

Sorry if that's taking the thread off it's intended course . . . .

[101A]

But it does become a federal issue because the Fourteenth Amendment incorporates fundamental rights to the States and precludes state legislatures from eviscerating those rights. It would be nonsensical to say that the Tenth Amendment somehow prohibits the Supreme Court of the United States from considering whether a state enactment is impermissible when the right to be vindicated is one that is ensured by the federal cons ution. At that point, you might as well say that the federal cons ution is just advisory to the states. Clearly, that isn't the case.



That strikes me as an obscenely narrow view of the Bill of Rights and the other amendments to the Cons ution. The broad language used to frame amendments requires judicial construction by courts considering the existence of a claimed right. To conclude otherwise, it seems to me, would necessitate a Cons ution with thousands and thousands of amendments to address the many things that we societally agree are protected (though not expressly) by the existing language. We're not talking about creating rights out of wholecloth; we're talking about examining broad language to determine if particular rights are within the scope of that language. I see a basic difference in those two concepts. If you don't, I guess we'll just have to agree to disagree.

I'll trust the long-recognized understanding that the Framers believed their do ent was flexible and not exhaustive; I maintain that the argument that the need for express delineation of every specific right vested by the Cons ution is the fairly recent construct of those who simply dislike the decisions that the courts are making.

And, to that end, I'll also suggest that the broad reading of cons utional language is a staple of both sides of the political spectrum. For instance, the Second Amendment does NOT guarantee an individual the right to possess any firearm he wishes; it EXPRESSLY prohibits the government from totally disarming the public. That is, saying that the government cannot deprive the People of the right to bear arms is not the same as saying that the government cannot limit the number or type of arms that a person might bear. It's a nuanced point, I'll grant you, but the express language of the Second Amendment would seem only to limit the government's ability to take away all arms. In that sense, isn't it suggestive of the very same sort of activism you're complaining about for those on the right, who maintain that the Second Amendment creates a safe harbor for ALL weapons, to argue that any governmental restriction on firearms is uncons utional? Aren't we arguing then about what that language means?

If we're going to argue about what the language means, isn't it permissible to consider whether the effect of a number of amendments (the First, the Third, the Fourth, the Ninth) is to create a zone of privacy that protects the private doings of individuals from governmental infringement? How come nobody ever argues that the decision in Griswold is somehow indicative of judicial activism -- after all, there's nothing in the Cons ution that expressly deprives a State of the right to outlaw contraceptives.

I did not mean to suggest, although I probably did suggest, that we needed a n exhaustive, explicit list of things that could, and could not be considered "rights" delineated in the Cons ution. It is a fuzzy line in my mind that one crosses, however, when deciding what IS covered and what is not. To paraphrase, I think, Strom Thurmond, I can't tell you exactly what (activism) is, but I know it when I see it. (and honestly it probably coincides with my own political/moral beliefs more than I would like to admit).

[101A]

My point here isn't to run off on defining judicial activism or defending courts.

I do think, though, that if someone is going to claim a resort to legal process as an alternative to revolution in an effort to change laws, we should, at the very least, determine what legal process is. That conversation, it seems to me, necessarily brings about a discussion about the roles of courts and legislatures and the extent to which a court might (or should) be called upon to invalidate legislative acts that infringe upon protected rights.

Yes we should.

[Wild Cobra]

From what I understand and correct me if I'm wrong, you would be willing to take up arms in the fight for independence from England, but on the issue of slavery you would want to go through the proper legal channels just so you wouldn't violate the cons ution and the rights of the oppressors of slaves.

Yes. Keep in mind that slavery was a legal trade world wide. I just looked up the statistics a day or two ago. Earlier I stated 5% as the number we had in America during the early period. Well, that is high for a world wide number. We had 5.4% of the slaves in the Americas, of the Atlantic trade! Where world wide puts us at is anyone's guess, but it could be below 1%.

Now the "New World" and dreams of America were recognized by people of several nations, not just England. I think anyone of English decent of the period would feel traitorous to revolt. However, most of the population of the colonies were other then English, right?

Why should anyone of other than English decent feel wrong to revolt?

Do you see one being a worse injustice to a group of people than the other?

Slavery was absolutely an incredible injustice. I have never said otherwise. Are you cherry picking my remarks?

If you really look deeper into some slave facts, it is likely that the slaves not sold, would have been executed. A significant share of slaves were from rival tribes, captured in warfare. They only lived because they could be sold, therefore they were chained rather than slaughtered.

Maybe the injustice could be considered merciful? It's one of those hard facts I don't like, but it is fact!

I'm all for going through the proper legal channels in order to get things done, but I'm sorry I just can't worry about upholding a cons ution and a law that permits the bondage of human beings, and I damn sure would not be worried about the "rights" of such people who would hold another human in bondage. But as stated before, this is all in hindsight and my obvious bias in this matter.

Just try to look at things from a perspective where such things were the commonplace. Not by today's values.

[PixelPusher]

I'll trust the long-recognized understanding that the Framers believed their do ent was flexible and not exhaustive; I maintain that the argument that the need for express delineation of every specific right vested by the Cons ution is the fairly recent construct of those who simply dislike the decisions that the courts are making.

I challenge you to find that in the Cons ution!

[TLWisfoine]

Yes. Keep in mind that slavery was a legal trade world wide. I just looked up the statistics a day or two ago. Earlier I stated 5% as the number we had in America during the early period. Well, that is high for a world wide number. We had 5.4% of the slaves in the Americas, of the Atlantic trade! Where world wide puts us at is anyone's guess, but it could be below 1%.

Now the "New World" and dreams of America were recognized by people of several nations, not just England. I think anyone of English decent of the period would feel traitorous to revolt. However, most of the population of the colonies were other then English, right?

Why should anyone of other than English decent feel wrong to revolt?

Slavery was absolutely an incredible injustice. I have never said otherwise. Are you cherry picking my remarks?

If you really look deeper into some slave facts, it is likely that the slaves not sold, would have been executed. A significant share of slaves were from rival tribes, captured in warfare. They only lived because they could be sold, therefore they were chained rather than slaughtered.

Maybe the injustice could be considered merciful? It's one of those hard facts I don't like, but it is fact!

Just try to look at things from a perspective where such things were the commonplace. Not by today's values.

They were still subjects of the English crown, thus making them English. Using your logic, shouldn't they have just gone through the legal channels to express their displeasure with the English government instead of revolting? Also, during the revolution weren't there more Loyalists in the country than Patriots?

By the mid 19th century if I am not mistaken most of the countries in the Western world that had previously allowed slavery had it abolished leaving America as one of the few countries in the West to still permit slavery. Also, most people in the U.S. although they did view blacks as being inferior, disagreed with slavery and just wanted them out of the country. Didn't President Lincoln offer the slave owners in the south compensation in order for them to release their slaves and have them deported to Liberia or some other African nation? So to say that slavery during the pre-Civil War years in America was commonplace and legal is wrong, but I could be wrong and it has been over 30 years since I learned this in school. Correct if I am wrong.

Question, do you feel that the people such as Denmark Vesey, Nat Turner, John Brown and others who took up arms against slave holders in the pre-Civil War years were in the wrong for doing so? Also I am going to have to disagree with your assertion that slaves being sold off into slavery was in any way "merciful." You are aware of the horrors/genocide of the Middle Passage and the number of slaves that died during that passage right? Given a choice between bondage or death, "Give me Liberty or give me death."

[PixelPusher]

They were still subjects of the English crown, thus making them English. Using your logic, shouldn't they have just gone through the legal channels to express their displeasure with the English government instead of revolting? Also, during the revolution weren't there more Loyalists in the country than Patriots?

The colonists had no legal recourse, they had no representation in Parliament...hence the whole "no taxation without representation" thing.

[Jamtas#2]

The colonists had no legal recourse, they had no representation in Parliament...hence the whole "no taxation without representation" thing.

Neither did the slaves. They had to depend on others who saw that it was wrong to speak for them. Should the Americans have let sympathizers in England speak for them and wait until everything was resolved?

[PixelPusher]

Neither did the slaves. They had to depend on others who saw that it was wrong to speak for them. Should the Americans have let sympathizers in England speak for them and wait until everything was resolved?

Americans did move politically towards the abolition of slavery (resulting in the civil war); there was no "Free the American Colonies from British Rule" political movement in England.

[Jamtas#2]

Americans did move politically towards the abolition of slavery (resulting in the civil war); there was no "Free the American Colonies from British Rule" political movement in England.

Maybe if the colonists had to wait for 100 years the movement would have started.

[Jamtas#2]

I'm really surprised at the tone of this. When it comes being taxed, people are all for war. But in the situation of enslaving another human being, let's not rush into things and take a more legal approach.
I guess it is more of a situation of the taxes affect me directly, but I wouldn't have been a slave so it isn't as big an issue for me.

[PixelPusher]

I'm really surprised at the tone of this. When it comes being taxed, people are all for war. But in the situation of enslaving another human being, let's not rush into things and take a more legal approach.
I guess it is more of a situation of the taxes affect me directly, but I wouldn't have been a slave so it isn't as big an issue for me.

You won't get any Confederate sympathy from me, but I think you have this backwards, it wasn't abolitionist who were compelled to go to war to free slaves, it was slave owners who were compelled to go to war to prevent the freeing of slaves.

[Wild Cobra]

You won't get any Confederate sympathy from me, but I think you have this backwards, it wasn't abolitionist who were compelled to go to war to free slaves, it was slave owners who were compelled to go to war to prevent the freeing of slaves.

Thing is, when the south succeeded, they did it successfully. The first seven states that succeeded did so between 12/20/1860 and 2/1/1861. There was more than two months before the war started. Sure, the North made things difficult for the south, but things would have been fine until that fateful day of 4/12/1861 when the south attacked Ft. Sumter. Four more states succeeded after that! That event never needed to take place. Question then is, would it have happened elsewhere, or would we have had a divided nation where real talk and compromise could have occurred?

[Holt's Cat]

Congress shall make no law, unless it's something we really want. And thus ends our liberty.

[Wild Cobra]

Congress shall make no law, unless it's something we really want. And thus ends our liberty.

Sounds like the way the ACLU restrics religion!

[Holt's Cat]

Both sides do that nowadays. Sure, you cannot have a Cons ution that presupposes every future possible contentious issue, but that doesn't mean the general edicts set forth in the Cons ution have to be whittled away through tortured judicial hair-splitting.

Otherwise, the attempts of the current administration to engage in activities which would appear on the surface in infringe on our liberty are valid. The Cons ution is meant to piss off the majority, not to be turned into a malleable mess that can say what we want it to say.

[PixelPusher]

Thing is, when the south succeeded, they did it successfully. The first seven states that succeeded did so between 12/20/1860 and 2/1/1861. There was more than two months before the war started. Sure, the North made things difficult for the south, but things would have been fine until that fateful day of 4/12/1861 when the south attacked Ft. Sumter. Four more states succeeded after that! That event never needed to take place. Question then is, would it have happened elsewhere, or would we have had a divided nation where real talk and compromise could have occurred?

"real talk and compromise" about slavery? We had senators beating up each other with canes on the floor of Congress over this issue several years before the succession.