"legislating from the bench"=BS?

[Alaska Darin]

I'm glad you know everything

I don't know everything - just more than you do, apparently.

... if I need to formulate my opinion or find out all the facts, I'll be sure to stop by ...

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Thanks for the warning.

[Typical TBD Guy]

And frankly...it's an issue that's never going to be fair to everyone as long as the determination of when life begins remains entierly subjective. 

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Yeah, but the thing is that we - as a society - MUST at some point make a subjective determination that everyone (or rather, the vast majority) can agree upon.

 

My own personal (and yes, subjective) belief is that human life begins when the human brain starts to form (at about 4 weeks). However, women deserve an extra 2 months to figure out whether or not they're actually pregnant before being penalized for murder....hence, my first trimester rule.

 

Under my definition of life, that would technically make abortion between months 1-3 murder. Nevertheless, this is what societies sometimes do; we make individual life or death situations for the overall good of the society, not unlike killing criminals in the line of fire or waging war against countries.

[Mickey]

wow is it possible for me to get those 3 minutes back?

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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.

[Live&DieBillsFootball]

Why start at conception? I believe that life begins at the first neurological impulse that leads to an erection. Anyone who stops the impulse from leading to the birth of a child is guilty of murder. Therefore the following acts should be considered murder:

 

1. Using any form of birth control, spermacides, coitus interruptus.

 

2. Jerking off

 

3. Girls that make you horny but won't have intercourse with you

 

4. Handjobs

 

5. BJ's - unless they swallow

 

6. Not letting a guy finish

 

7. Women who wear provacative clothing.

 

8. Hot avatars

 

[Live&DieBillsFootball]

Yeah, but the thing is that we - as a society - MUST at some point make a subjective determination that everyone (or rather, the vast majority) can agree upon.

 

My own personal (and yes, subjective) belief is that human life begins when the human brain starts to form (at about 4 weeks). However, women deserve an extra 2 months to figure out whether or not they're actually pregnant before being penalized for murder....hence, my first trimester rule.

 

Under my definition of life, that would technically make abortion between months 1-3 murder. Nevertheless, this is what societies sometimes do; we make individual life or death situations for the overall good of the society, not unlike killing criminals in the line of fire or waging war against countries.

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Isn't that what current abortion laws have done, made a subjective determination?

 

Some may say that a fetus is not viable until about 26 weeks or so. Very few babies born before 26 weeks end up living. Female fetuses seem to be viable earlier than males.

 

Right to lifers want to say no to all abortions. Radical pro-choicers think that they should be able to make the decision until the child is born. I think the majority believe as you do, that if an abortion is to be done, it should be done as early as possible. If you can't make up your mind early enough, you need to have the baby unless having it would jeopardize the life of the mother.

[SilverNRed]

5.  BJ's - unless they swallow

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I don't think "swallowing" is going to result in a pregnancy any more than "not swallowing" would.....

[Mickey]

So the Supreeme Court legislated abortions 30 years ago  But now we don't want them to legislate.  I see, as long as they are legislating to have things the way you want it is okay.  But when it doesn't meet your goals and opinions it's not okay.  Got it.   

 

Everyone knows my opinion on abortion, so I don't need to repeat it.  But if the they overrule the previous legislated action from the bench I will be happy.  I don't belive the constitution or an amendment gave the right to anybody to kill another person.

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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.

[Mickey]

Yeah, but the thing is that we - as a society - MUST at some point make a subjective determination that everyone (or rather, the vast majority) can agree upon.

 

My own personal (and yes, subjective) belief is that human life begins when the human brain starts to form (at about 4 weeks). However, women deserve an extra 2 months to figure out whether or not they're actually pregnant before being penalized for murder....hence, my first trimester rule.

 

Under my definition of life, that would technically make abortion between months 1-3 murder. Nevertheless, this is what societies sometimes do; we make individual life or death situations for the overall good of the society, not unlike killing criminals in the line of fire or waging war against countries.

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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.

[Mickey]

Mick - there is no way in hell that I can get into a conversation with you in legalese, so I won't even waste your time while simultaneously embarrasing myself.  My question to you however is that if there is no such entity as 'legislating from the bench', then how do you explain the behaviors of our lawmakers?  They seem to be pretty worked up right now and it's much to do with abortion.

 

A few examples:

There is no doubt in anyone's mind that this will be the centerpiece issue during this confirmation.  I haven't had time to read JGR's opinion where he stated that he felt Roe Vs. Wade was decided wrongly, but maybe that would be a better topic to discuss rather than our forefathers' intentions for the unborn.  I mean crap, they didn't even anticipate the extension of these rights to blacks...

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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.

[Mickey]

Ah, abortion.  Perhaps the most pressing problem we face and the single biggest reason our society is failing. 

 

Go politicians and the lemmings who buy their crap!

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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.

[Live&DieBillsFootball]

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.

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I have enjoyed your take on this issue. It's a nice change form the partisan bickering, although that is fun too.

 

As far as the court deciding things on a constitutional basis, it is always puzzling to me to see so many 5-4 decisions. The justices job is to interpret the Constitution. How can 4 out of 9 disagree so often with the majority? Obviously, politics, religion, and personal beliefs are entering the minds of the judges. This is why this appointment is so crucial as SDO has been on the majority in so many 5-4 decisions.

 

What would be the impact of most of these 5-4 decisions going the other way?

[ExiledInIllinois]

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.

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Totally agree.

[Adam]

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. 

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I know this isn't what your post was about- but this thought is way too entrenched in our society. Some people don't want open debate on issues, they just want what they want. Majority rules in this country, and thats how it should always be.

[Alaska Darin]

Majority rules in this country, and thats how it should always be.

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Not really. Mob rule is not palatable.

[Terry Tate]

I am so sick and tired of that red herring ... meaningless catch phrase ... simply shorthand ... an appealing little "jingle" ... propaganda ... tripe ... glop ... 

 

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.

...

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. 

...

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.

...

the whole legislating from the bench thing is meaningless in the context of abortion. 

First of all, if you want respectful discussion, starting out a rant by describing your opponents' position with insulting, derogatory comments strewn throughout is perhaps not the best way to get the desired result. I guess I've grown accustomed to your style, so I can see past it. But it's deceiptful.

 

As for your point, I think you've perfectly illustrated the definition and context of 'legislating from the bench', which rather contradicted your paragraph about it being a meaningless catch phrase, or mere propaganda. That in and of itself does not appear to be the burr under your saddle - it's the hypocracy of those who would wish to turn around and do the exact same thing from the right.

 

On that point, I would agree. If that's the position some people hold, it is hypocritical of them to rail against 'legislating from the bench' - but that doesn't mean 'legislating from the bench' is a meaningless phrase, it's just hypocritical of them to use it. And yes, there are people like that out there, but it doesn't describe everyone opposed to abortion.

 

I'm pro-life. I personally believe the founders had no thought of the issue of abortion while they were crafting the Constitution. I don't believe Roe V Wade was good law. I think it should be overturned, and the issue left to the states, since the Constitution has absolutely nothing to say about it.

 

If states want to ban it, they need to prove a baby has constitutional rights before it is born (such as the reasonable chance to survive outside the womb, I would suppose). Otherwise, they would be restricting the mother's right to privacy, which they're not allowed to do. Somewhere in between there, there is a period where the mother's right to privacy is in conflict with the baby's right to live (for this argument, I would say a baby that can live outside the womb), and that line is shifting as medical science progresses. Not a simple task, crafting a law that incorporates all of that. Add in congenital birth defects, and it gets more complicated.

 

Quite frankly, a position at either extreme has no place in the Constitution.

[Reuben Gant]

Somewhere in between there, there is a period where the mother's right to privacy is in conflict with the baby's right to live (for this argument, I would say a baby that can live outside the womb), and that line is shifting as medical science progresses.

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Sidenote:

I have often wondered when the artificial womb will be created and what that will do to viability arguments.

 

Secondly, I wonder how many people with strong opinions on Roe v. Wade have actually read the decision:

 

The Decision

[erynthered]

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.

 

 

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You take " can I have my 3 minutes back" as a personal insult???

 

Then call him an Idiot?????

 

 

That is the lamest, weakest, pile of horse sh*t I've ever seen from you Mick, Christ.

[Mickey]

I have enjoyed your take on this issue.  It's a nice change form the partisan bickering, although that is fun too. 

 

As far as the court deciding things on a constitutional basis, it is always puzzling to me to see so many 5-4 decisions.  The justices job is to interpret the Constitution.  How can 4 out of 9 disagree so often with the majority?  Obviously, politics, religion, and personal beliefs are entering the minds of the judges.  This is why this appointment is so crucial as SDO has been on the majority in so many 5-4 decisions.

 

What would be the impact of most of these 5-4 decisions going the other way?

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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.

[Reuben Gant]

 

I don't think "swallowing" is going to result in a pregnancy any more than "not swallowing" would.....

387401[/snapback]

your right. Storks bring babies.

Swallows don't.

[Mickey]

First of all, if you want respectful discussion, starting out a rant by describing your opponents' position with insulting, derogatory comments strewn throughout is perhaps not the best way to get the desired result. I guess I've grown accustomed to your style, so I can see past it. But it's deceiptful.

 

As for your point, I think you've perfectly illustrated the definition and context of 'legislating from the bench', which rather contradicted your paragraph about it being a meaningless catch phrase, or mere propaganda. That in and of itself does not appear to be the burr under your saddle - it's the hypocracy of those who would wish to turn around and do the exact same thing from the right.

 

On that point, I would agree. If that's the position some people hold, it is hypocritical of them to rail against 'legislating from the bench' - but that doesn't mean 'legislating from the bench' is a meaningless phrase, it's just hypocritical of them to use it. And yes, there are people like that out there, but it doesn't describe everyone opposed to abortion.

 

I'm pro-life. I personally believe the founders had no thought of the issue of abortion while they were crafting the Constitution. I don't believe Roe V Wade was good law. I think it should be overturned, and the issue left to the states, since the Constitution has absolutely nothing to say about it.

 

If states want to ban it, they need to prove a baby has constitutional rights before it is born (such as the reasonable chance to survive outside the womb, I would suppose). Otherwise, they would be restricting the mother's right to privacy, which they're not allowed to do. Somewhere in between there, there is a period where the mother's right to privacy is in conflict with the baby's right to live (for this argument, I would say a baby that can live outside the womb), and that line is shifting as medical science progresses. Not a simple task, crafting a law that incorporates all of that. Add in congenital birth defects, and it gets more complicated.

 

Quite frankly, a position at either extreme has no place in the Constitution.

387597[/snapback]

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?