Mickey

I believe your exact words were: "I think it should be overturned, and the issue left to the states" Did I get that wrong? If not, I'll ask again, why do you think the issue should be left to the states?

You've got that right. Look on the bright side though, the mob has been really struggling lately and this will give them a whole new business to get into ala prohibition.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Under Roe, it is "the people" who decide for themselves whether to have or not to have an abortion. If your position is that the federal government should not make this decision for us, that the states should decide, why stop there? Why not go one step further and say that "the people" should decide for themselves? Why is the paternalism of a State government more acceptable to you than the paternalism of the federal government. Under current law, no one who is against abortion is required to have one and no one who wants one, with certain restrictions, is prevented from having one. This will not be left up to the states in any event. If Roe goes down, Congress will trip overthemselves to pass the "Protection of Babies Act" which will override any state law on the issue. The only way that might be prevented absent Roe is a filibuster in the Senate and we know what will happen to that.

The most important question I have for you is why is it preferable to you for states to decide for themselves whether abortion should be legal?

I think the 5-4 splits are indicative of how the court has become an ideological battle ground. Neither side will allow confirmation of a Judge that will clearly change the balance. However, when the balance isn't really going to be changed, they don't bother with a filibuster. Remember that Souter and Kennedy were Republican appointees and were expected to vote with Rhenquist, Thomas and Scalia to overturn Roe. There was no reason then for Republicans to filibuster Ginsburg or Breyer, both Clinton appointees. They had a majority already, or so they thought. That is why the right went positively balistic when Kennedy and Souter voted to uphold Roe in Planned Parenthood v. Casey. That case weakened the protections of Roe in allowing all sorts of restrictions but it kept the core of Roe intact. Suddenly, all those republicans which had so admired the intellect and judicial philosophy of Souter and Kennedy when they were appointed did a flip-flop and concluded that they were judicial activists. Any way, given the way the parties deal with nominees perceived as changing the balance or not doing so, it was inevitable that the court would be split a lot 5-4. As for the impact of that, a 5-4 opinion is not as strong as a 9-0 opinion which is what the vote in Roe was. Normally, it would not be appropriate to overturn such a powerful precedent by a lousy 5-4 vote. In essence, the total vote on Roe over the years if it were overturned would be 13-5 with the opinions of 5 justices overruling 13. Allowing that kind of thing can lead to a yo-yo effect which undermines the court, the constitution and the rule of law. You could have abortion going in and out of legality. Judges using real discretion and restraint would wait to until a more powerful majority against Roe could emerge. Of course, if you are a justice and you are convinced that abortion is murder then you are just going to overturn Roe no matter what, the law and precedent be damned.

JP is about to get sacked in the first one.

Handing out money to voters. The surest way to electoral victory. A tried and true strategy. There is a theory that says that no matter how people may try to disguise it beneath veils of altruism, their primary motivation is always self interest. On this principle, the parties are indistinguishable.

I don't really think the country would be rocketed to hell based on what does or doses not happen to Roe v. Wade. That is why I was trying to focus on the legal theory being cited most often to overturn it, this stuff about legislating from the bench. That theory could be a real problem long after Roe goes wherever it goes the next time a case calls its continued survival into question. Being without a womb and all, I don't have a dog in this fight. I do however actually worry about constitutional law and analysis and I don't like this "legislating from the bench" stuff at all. It is intellectual Binz, you can use it to cover any defective reasoning you like. Besides, I think we can fight the war on terrorism and chew gum at the same time. From a purely political standpoint, the best thing that could ever happen to the democrats might be for Roe to be overturned.

Actually that last line in your post about not getting into original intent and all sort of illustrates the point I am trying to make, that this whole complaint about "legislating from the bench" is a bunch of hooey. You are absolutely correct, it is all about abortion. One side wants it legal and the other wants it outlawed and neither cares much about the legal theory that gets them there. When one side says they want a judge who will not legislate from the bench, what they really mean is that they want a judge who will overturn Roe. When the other says they want an independent judge with an open mind what they really mean is one who will surprise Bush and vote to keep Roe. This case however is not going to be decided in the waiting room at planned parenthood or at the next meeting of the 700 club. It isn't going to be decided by priests, doctors, ministers or NOW presidents. It is going to be decided by judges and they are going to have to find a legal theory upon which to base their decision. That is the discussion I am trying to have here but I don't think people are very willing to get into that. People would just rather stick to their guns, chant their mantras from "reproductive freedom" to "baby killing" rather than actually conduct an intellectually honest inquiry that has no predetermined outcome in mind. Frankly, it was probably not reasonable to expect that kind of debate on such a hot issue and in a forum that has far more screamers than thinkers. Thanks for the reasoned response, the quotes and the absence of insults.

In a larger sense, your viewpoint on this seems to be that the question does not involve absolutes. You then go on to try and fashion what for you is the most reasonable position based on what you know and what you believe. I think that is an entirely reasonable approach even though I might disagree on one or another specific. I think maybe that the two camps on this issue can be divided between those who see it as an abosolute and those who don't. I didn't really want to have a debate on whether abortion should or should not be legal. I was more interested in examining the intellectual road pro-lifers take to get to their legal position. The Supreme Court is not a church and the justices are not priests. They are not going to overturn Roe by citing the bible or through prayer. They are going to have to offer a legal argument. The one I most often hear is that Roe was an exercise in "legislating from the bench" and therefore should be overturned. That is not exactly a detailed legal analysis is it? In Roe, the courts looked at whether or not an unborn fetus was a legal person based on legal and other precedents. They never held that a fetus was NOT a life, just that it was not a "legal person" and therefore its rights and status were subordinate, in part, to the rights of the mother. The Constitution refers to "persons", not "fetuses". In the view of the court that decided Roe, it would have been "legislating from the bench" for them to find that contrary to all available precedent a fetus was a legal person. They declined the opportunity to invent that principle out of thin air. For Roe to be overturned and for it to be overturned by holding that a fetus is a legal person, the court would have to engage in the very legislating the enemies of Roe claim to despise. Again, I am not trying to argue for or against legalized abortion, just that the legal argument against "legislating from the bench" is a farce. I am pretty certain the the enemies of Roe v. Wade really don't care whether the theory used to overturn it is legally sound or not just as long as it is overturned. If they were truly interested in judicial restraint, we would not have witnessed what we did in the Schiavo case.

I thought it was a pretty straight forward question but if you don't want to risk the possibility that finding that an unborn fetus is just as much "legislating from the bench" as is declaring laws prohibiting abortion to be uconstitutional, fine, I understand. "...as long as they are legislating to have things the way you want it is okay." For the record, I have never complained about "legislating from the bench" but have instead argued that it is a political catch phrase that is meaningless. It is the right which complains about legislating from the bench over and over and over ad nauseum. Since they see it as such an important and valid principle, I am curious as to why they so enthusiatically violate it when it suits their purposes whether it be the shameful Schiavo embarassment or legislating, from the bench, that all fetuses are legal "persons". Don't ask me to defend your own principles, I am not the one whose siren call condemns "legislating from the bench". The bottom line I believe is that the pro-life crowd wants an end to abortion and they really don't care whether doing so is or is not legislating from the bench or is in keeping with the original intent of the framers or not. They just believe it is wrong, wrong, wrong. I respect that. What I don't respect is the pretense that their opposition has anything to do with constitutional law.

I knew there would be some who couldn't possibly resist going for a personal insult and I knew somehow that you would be the first such idiot to do so. Nice to see you've set aside this special time to humiliate yourself in public.

Did you ever wonder why the teams don't sue the player for breaching the contract? The reason is: they would lose. The NFL is a monopoly and as a result, the contracts are likely unenforceable in a court of law. The "hold out" is an accepted business practice in the NFL under certain circumstances. There is a principle of contract law that states that if a party to the contract ignores a breach, the provision breached is waived and is thus no longer enforceable. Lets say the contract requires the player to wear a tie at meetings or face a fine. Lets say he shows up for 10 meetings without a tie and the team does not fine him or even complain about it. They can't then suddenly fine him when he doesn't wear the tie in the 11th meeting. He can argue that they waived that provision by not enforcing it. If you sit on your rights, you lose them. Hold outs are nothing new, they are a fact of life in the NFL and the reason they are not stopped is because the teams, the league and the players, by their actions, accept them. The reason they accept them is because they have no choice, it isn't illegal to refuse to honor a contract that is ultimately not enforceable. I would argue that the player is not committing any breach of "honor" here. This is how the business works, it is the custom and practice in the industry.

I am so sick and tired of that red herring which I have long argued is a meaningless catch phrase that is simply shorthand, an appealing little "jingle" used more as propaganda than any serious statement of legal philosophy. Not everyone has the time to immerse themselves in the nuance and extensive history of consitutional law. That makes it pretty easy to kick out that kind of tripe and have it sound pretty reasonable and attractive to people who have barely enough time to get the kids to school let alone ponder the impact of Schmeeemow vs. Obscuro. I certainly don't want to enter into a debate about abortion itself, the positons of the most frequent posters here are pretty well entrenched so there would be little gained in such a debate. Instead, I would like to hear what people have to say about this "legislating from the bench" glop. As dismissive of it as I am, I recognize and respect that some may see it as not only legit but actually right on target. I am willing to be convinced that I am wrong on this as long as you can manage to state your position without personal insults or regurgitating whatever you read at Conservomatic.com or www.Libs-r-us. To start it off, this idea of "legislating from the bench" is pretty closely tied with the idea of original intent, ie, a court that goes too far beyond what is in the Constitution by reading too much into it, has gone beyond the original intent of the founders and in so doing, is "legislating from the bench". I think that is a pretty accurate statement of the objection by so many on the right that Judges are re-writing the constituiton by expanding it beyond any reasonable interpretation of it. How does that concern jell with the anti-abortion arguement based on the idea that the unborn have rights, that the unborn are persons and that terminating a pregnancy is therefore murder? I am not aware of any proof at all that the Constitution extended rights to the unborn or that the framers ever meant its protections to extend to the unborn, that the unborn were persons. You may disagree that such proof exists and if so, please link to that proof but before you do, tell us what your position would be assuming in fact that there were no such proof as well as your position assuming there is proof that the unborn were covered by the constitution as part of the original intent of the framers. You see, if your position is the same either way then there really is no need to challenge your position on the proof or lack of proof regarding the unborn and original intent. If your position would in fact change, then it might be worth exporing the arguments or proofs that the framers intended the rights embodied in the constitution to extend to the unborn. That seems to be at the core of many anti-aboriton arguments, that the fetus is a person. My sense is that a strict originalist however, would have to stretch pretty far to find a concern about the rights of the unborn on the part of the framers. My belief is that most anti-abortion opponents are against it because they feel in their heart and their bones that it is simply as wrong as wrong could be and it really doesn't matter to them what the law has to say about it. If the law says its legal, the law is wrong and should be changed and if, in fact, an accurate interpretation of the law leads to the conclusion that it should be illegal then fine, lets correct the decisional law that holds to the contrary. If that is the case then really, the whole legislating from the bench thing is meaningless in the context of abortion. Its opponents are against it regardless. Pro-choicers don't use the "legislating from the bench" thing as a justification for their position so that is why I am not bothering to look at their use of the phrase. Occasionally I do hear it from the left but more as an argument they accept solely to turn it around on the pro-lifers since they put so much store in it. This is obviously as controversial a hot-button issue as there is so if we could try to be as respectful of eachother's opinons as possible here we might be able to have a reasonable discussion. If you want to call someone a baby killer or a womb czar, start your own thread.

I understand the caution. What I like about that article though is the picture it paints of someone who is intellectually curious and who wants to continue to grow, to learn, to expand his vistas not just on the field but off of it as well. He is a guy who, as confident as he is, knows and wants to learn. You can't teach curiosity or a love of learning. Some guys take being taught as some sort of insult to their abilities and intelligence, others see it as an opportunity to get better at what they do. Anyone who has ever tried to teach anyone a certain skill can tell you how impossible it can be teach those whose egos won't let them learn and what a pleasure it is to teach someone who is so curious they want to learn everything.

You can hate catholics or their church or what they teach or all three. Fine with me. I just don't think you should get public money, my money, to support your hate for me, my church or my beliefs.

Only if the group is using public money. The Constitution is weird in that it mostly only prohibits certain invasions by the government, ie "state action". A University accepting government grants can't refuse to hire a catholic or gve preference to hiring evangelicals as it would violate the Establishment Clause. Because they are getting public cash, their actions are "state actions". Many conservatives would see that rule obliterated and already have succeeded to some extent when it comes to religion. A church can accept federal money and act unconstitutionally at the same time. Conservatives have carved out an exception for them based on the idea that taking fed money doesn't make their actions "state actions". Therefore, they can discriminate where any other entity accepting public funds would not be permitted to do so. The rule used to have been that you couldn't use public money to benefit any religion but conservatives have fairly successfully moved that line to where public money can benefit a religion as long as it is done without partiality to any one religion. My own view is that you can't do that without benefitting one over the other no matter how fair you try to be. Lets say you distribute "X" amount of cash to churches and you divide it up evenly based on the number of churches in each faith. The faith with the most churches gets the most money and is therefore benefits more than the others. If you divide it up by faith, so much to the catholics, so much for the christians, etc. then smaller religions would get a lot more money per individual member of that faith so they would disproportionately benefit. I f you do it by the number of individual adherents to a given faith, how do you count them? Would a catholic who only goes to church on Christmas Eve count? How about a self described Christian whose behaviour is blatantly anti-christian such as a skin head, would he count for them? It doesn't take too much imagination to see how the minute you say it is okay to give tax payer dollars to churches, sort of an involuntary tithe, it is invevitable that favoritism will creep in, it always does. We have a ton of rules to prevent that kind of thing from effecting the award of government contracts or hiring, etc, etc, etc. Do they work? If we can't get a mailman hired without favoritism, how are we going to prevent it when we are passing out cash to churches?

My parents live in Florida part of the year, long enough to vote there. They are both catholics and lifelong conservatives who once in a great while vote democratic. This past presidential election they voted for Kerry. On her way into the polling place my mother saw a bunch of pro-bush demonstrators and one of them had some sort of sign that indicated that God was for Bush. My mother talked to the woman with the sign for a bit and when my mother told her she was voting for Kerry, not because she thought God was for Kerry but because God wanted her to make up her own mind the woman said, "Oh, you must be catholic" with the contempt dripping from her lips so thick she needed a drool cup. Nice.

It doesn't work that way. Congress will pass a law making abortion a crime overriding any contrary positions by the states. My guess is they will cite the commerce clause as giving them jurisdiction over wombs. I also predict that states rights devotees will do a flip-flop when it comes to states wanting to keep abortion legal. Very similar to the dizzying flip-flops they did over the Defense of Marriage Act and the shameful Schiavo escapade not to mention Bush v. Gore.

No, it won't work that way. If abortion can be constitutionally outlawed congress can pass a law making it illegal. The preemption doctrine would dictate that federal law would preempt any contrary state law. Given the current make up of the House and Senate I predict such a law would pass about 5 minutes after Roe was overturned. You'll see all sorts of "states rights" lovers suddenly sing a different tune when NY or MD, etc, decide that they want to keep abortion legal after congress has made it a crime. That is not even to consider what would happen to a number of other precedents having to do with privacy that depend largely on Roe.

Constitutional rights aren't spposed to depend on votes. Core principles hold true despite the political fashions of the day. What "stereotype motive" am I "implying" in my post about a christian adoption agency receiving public money and refusing to accept catholic applicants because they aren't christians? That happens to be a fact, not a stereotype and I am not implying they did so, they actually did.

I would have done no better and no worse and certainly wouldn't have claimed to be a genius. Of course, I wouldn't have picked him to begin with and how that would have worked out, we will never know since we can't rewind history. Look, if you think this was some sort of brilliant coup on his part, tell me what was so incredibly brillliant? You said yourself that "One can easily claim that TD did not pull off a miracle here..." but when I say the same thing you challenge me to prove how it could have been done better. My arguement over and over and over, that for some reason you are just not getting, is that Travis Henry is an average back, not worth the first or second round picks that so many, especially before the draft, were so certain he was worth. I am not upset that TD didn't do better than a third, my argument is actually that he was not worth anything more than a third. I can't state it any more plainly FFS. You act as if I am among those who think TH was worth more, quite the contrary, those are the people I have been arguing with since before the draft.

Actually, that is exactly what we do when it comes to abortion and contraception the right wingers view as the equivalent of abortion. In fact that has been one of the biggest sure fire winners for the right, making sure that public money never directly or indirectly supports abortion here or in other nations through foreign aid. If they can demand how their money is spent because of their religious views, why can't I demand that my money doesn't benefit people who don't think I, as a catholic, am a christian? I checked out their web site and message forums and there are people there reporting the same treatment of catholic applicants in Maryland. Other chimed in with how the Jackson office of Bethany was justified because indeed, catholicism may not be consistent with their christian statement of faith. What I find most amazing is that the right on this board is so programmed to defend their side that we actually have to debate the merits of a "no catholics need apply" adoption agency policy. I would have thought that to democrats and republicans alike such a policy would be neither defended nor minimized.

Exactly. No big deal. No stroke of utter, blinding brilliance and not an astounding failure either. We got him for a second, traded him for a third and got a couple of good years out of him to make up the difference. Ho-freaking-hum.

I have not said we should just cut him and I have not said we should have done better than the third rounder we eventually obtained from the Titans. What I said before the draft was that I highly doubted that we would get a first or second round pick for TH. The responses I got was that I must be a TD hater for not thinking that the old fox would pull a rabbit out of his hat and get a high pick for TH or responses along the lines that I was an idiot because TH was such a great back. Still others called me out as both, an idiot and a TD hater. I don't mean to mock out any who thought we would do better than we did and were not arrogant or insulting to those who disagreed. After the draft, a lot of the same people were convinced that ol' Tom would still pull off some brilliant stroke and get us a second round pick just as soon as some team had a starter go down with a knee injury. From a Karma standpoint, with our own starter having a history of knee injuries (yes, two injuries to your knees is enough to have a "history" of knee injuries), I felt we should be last team in the league wishing for a RB to go out for the season. I pointed out that ol' Tom is not a genius and even if he were, the bottom line is that TH just isn't worth much which is why the best offer we got at the draft was a 4th rounder. Again I was villified by some of the more petulant posters who I am sure you have dealt with as well. The complaint was that again, I was not acknowledging the brilliance of TD in failing to believe that he would get us a second rounder (at least all the first round talk died out after the draft). Now finally we get rid of him and for a 3rd rounder which was about right given the whole situation and immediately there are two or three threads about how wonderful TD is and how any doubters should offer an apology. As I have said before now on several occasions, it was an average trade for an average player and an average draft pick. The only real significance it might end up generating is if a) WM goes down in camp with a knee injury or b) we end up getting a real find with our extra third rounder. Hopefully that first one will never happen and you can't get lucky in the third without a pick in the third and we know have two so we have two shots and unearthing a stud. TD did a competent job here but there was no brilliance nor any foolishness on his part. It seems to some I don't praise TD eough and to others, I don't condemn him enough. Tell you one thing though, I care about wins, not third round draft picks or money saving releases of prima donnas. If we win, TD will justly be praised for recovering from what mistakes he did make (GW) to produce a winner and if we don't, he will justly bear his share of the blame. No more excuses.