Well, statutory rape is wrong, wrong, wrong!, and yet there used to be 50 different ages of consent, ranging from 12 to 18. It's pretty well regularized at 16 to 18 now, though they say that Garance wants it raised to 21.
I'll discuss bestiality and necrophilia tomorrow.
Morality isn't the point, though. Legality is.
Indeed- this is what most right-to-lifers actually think but RTL politicians will never say because they don't want to scare away voters. Most conservative pols will say that overturning Roe just sends the issue back to the states because then people like William Saletan will vote for them. Of course, if Roe is overturned there will immediately be a federal law proposed banning abortion nationwide, and Saletan gets to say, "Who could have predicted such an outcome?"
At least Huckabee is upfront about it, making a play for the "I hate his policies but at least he's honest" vote.
4 gets it exactly right. Abortion is one of those issues Democrats should never, ever compromise on, even a little bit. Because the other side will gladly take that compromise, then continue right on pushing for more.
Huckabee's logic would seem to apply to all criminal acts as well. Why should the law of murder or sexual assault differ from state to state?
Fleshing out JE's point a bit.
Rove v Wade was good politics, but the reasoning seems suspect to me. I know this is a Grade A Worm-Can, but can the law-talkers amongst us comment on whether or not it's shitty law, or at least offer a primer on the debates thereof that must have taken place? Of course, 4 is correct, but I don't want to rely on constitutional pragmatism lest the bastards adopt the same standard.
See, this is problematic, though. There's a reason we have this "states as laboratories for democracy" paradigm. These days, issues like gay marriage, executing juveniles and people with disabilities, and others are being resolved (or fought over) at the state level. Many people on both sides see these as moral, not legal issues.
It's not as simple as saying "If it's a moral question, it should be resolved at the federal level."
On clicking the link, I see that Becks misses the point entirely. Excerpts:
"My plan to secure the border. Two words: Chuck. Norris,"
"Chuck Norris doesn't endorse. He tells America how it's going to be. I'm Mike Huckabee and I approved this message."
This man has my vote in the Republican Primary.
Conservative federalism = "States as laboratories for democracy things I want but can't pass federally." Cf. vouchers.
Yeah, if it's really "just" a question of morality, it seems appropriate to leave it to the states to decide in light of the localized community standards. It's a federal question because it comes down to whether or not it's a right guaranteed under our federal constitution. It's about rights, not morals.
(If Roe were overturned, could there be a federal law banning it? It doesn't seem like something that affects interstate commerce. Or would it be like the drinking age -- "Feel free to make your own local laws, but if your local laws don't provide X, then we won't give you this big pile of federal money upon which you depend.")
9: Of course, and your quote stands for the doctrine that culminates in Erie Railroad, holding among other things that there is no federal common law. One way of describing what Huckabee and many others want is federal common law.
On the other hand, to start to answer 8, the problem with a decision like Roe or it's predecessor Griswold, is that in relying on the due process clause of the 14th amendment for such a result, it in effect revives the once-thought-discredited principal of "substantive due process" although not of course under that name.
One of the defining trais of secularity or liberalism is the distinction between morality and law. Anyone who wants to can believe that fornication or alcohol or tobacco are immoral (and much of Huckabee's constituency does), but they aren't illegal in most of the U.S. Up until about 1950 the prohiition of alcohol was county-by-county -- Lake Wobegon straddle two counties, and all the bars are in one of them because the other was dry until about 1950.
I know this is a Grade A Worm-Can, but can the law-talkers amongst us comment on whether or not it's shitty law, or at least offer a primer on the debates thereof that must have taken place?
It's not as bad as you'll hear. The deal is that 'originalism' and similar philosophies are fantasies, and have been since at least the New Deal, and really since the Civil War. You poke at any area of constitutional law, and there's going to be a whole lot of doctrine that's not unambiguously present in the text of the Constitution, but that can't be walked away from without fundamentally restructuring our government. Constitutional pragmatism (taking the words at face value -- I don't know if this is a particular philosophy that's associated with an identified body of argument) is the only real game in town.
And at that point, RvW is a perfectly reasonable decision by the standards of other, non-controversial constitutional decisions.
principle. "The principal is your pal, etc."
8-Worm-can, indeed. It's certainly not shitty law. The court could have grounded its analysis in equal protection terms, which might have been more 'compelling' to some, but the due process, right to privacy grounds it used are pretty sound, as long as you believe in the existence of rights not spelled out in the Constitution, which just about everyone does, whatever they say. If you believe, e.g., that you have a right to contraception (and hence buy Griswold, which nobody seems to want to overturn) then you're most of the way there.
12-Sure, there'd be challenges that Congress doesn't have the power to restrict abortion, but they'd likely not succeed, at least in the foreseeable future. See Raich
as long as you believe in the existence of rights not spelled out in the Constitution, which just about everyone does, whatever they say.
And, of course, which originalists and similar are particuarly committed to believing in, under the literal terms of the Ninth Amendment.
I agree with Becks to the extent that if it really were just a straightforward moral issue, it would be strange to have abortion legal in one state and prohibited in another. And if the pro-lifers were correct on the moral merits, it would be as ridiculous as murder being legal in Pennsylvania but illegal in New York.
I don't agree that the primary reasoning in abortion legislation is the result of clearheaded moral thinking. But that said, when the DC sniper was caught, one of the weirder bits of the prosecution was deciding which state to try them in; one had the death penalty and one didn't. Was it a crime deserving capital punishment or not?
---
Anyone else think the abortion rhetoric seems quieter this election cycle?
Anyone else think the abortion rhetoric seems quieter this election cycle?
Maybe they're just keeping their powder dry.
Richard Posner suggested that one way to have gotten the universally-approved result in Griswold without having paved the way for Roe would have been to have decided it on 1st Amendment grounds, because the Conn. law represented an unconstitutional deference to an establishment of religion, the Roman Catholic Church.
Interesting, but nobody would argue such a thing if they didn't want to dismantle Roe
In conversations about Constitutional literalism and original intent, it's always amusing to bring up the Ninth Amendment, which reads:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The words are clear, as was the historical intent - the founders didn't want nitwits to think that a right didn't exist just because it wasn't clearly detailed in the Constitution.
I'm no legal scholar, so maybe somone can enlighten me, but as best as I can reckon, legal geniuses like Thomas and Scalia deal with the ninth amendment by pretending it doesn't exist. Can any of the legal minds here address this question on behalf of the eminent justices (I mean, in case Thomas and Scalia themselves don't comment here)?
19: There's no dividing line between "straightforward moral issues" and "mere moral issues". The law chooses to enforce some moral rules and not others. To many fundamentalists alcohol, tobacco, fornication, homosexuality and gambling are all straightforward moral issues, and they'd be glad to make all of them illegal. (There are exceptions, especially among tobacco-growing fundamentalists.)
(and hence buy Griswold, which nobody seems to want to overturn)
Further to 22: And there isn't agreement on all of those not-actually-enumerated rights -- I've recently seen "right to healthcare" and "right to read" both appealed to. Say what?
22: They're not big on the tenth, either. Nobody is, FDR screwed it up for everybody.
19, 23-Tobacco, alcohol, etc. are a little different, I think. A state can't treat the murder of, say, an African-American differently than that of a white under the 14th Amendment (I know, ha ha, I'm talking in principle here, and nobody argues that the principle is wrong); if abortion were constitutionalized as murder (which overturning Roe would prob. not do in itself, but it'd be a step in that direction) there'd have to be some sort of uniformity in restricting it emanating from equal protection.
I'm just saying that there's a dividing line between moral principles which are also legal principles, and moral principles which aren't. Thus, Huckabee's statement is false. There are legal reasons not to apply the law differently by race, regardless of whether morality is involved. Under segregation, the law required separate drinking fountains, which is hardly immoral at all, but which violates fundamental constitutional principles.
27 -- Why? Nothing requires uniformity of state lawas punishing murder? Yes, VA can't treat the murder of an African american differently than the murder of a caucasian, but VA certainly can treat murder differently than WY does. See e.g. states w/ and w/out the death penalty.
the law required separate drinking fountains, which is hardly immoral at all
???
I'd like there to be some set of agreed and binding principles, preferably written, upon which we could build our government, At the moment is seems that what we have is a government that is only limited by the effectiveness of its rhetoric. Has this always been the case?
Abortion is one of those issues Democrats should never, ever compromise on, even a little bit. Because the other side will gladly take that compromise, then continue right on pushing for more.
Absolutely. Democrats were chicken about "partial birth abortion" instead of screaming back "WOMEN SHOULD HAVE THE SAFEST PROCEDURE POSSIBLE FOR NON-ELECTIVE ABORTIONS!!!!!!!!!!!!!!!!!!!!!!!!" at the top of their lungs.
There's no dividing line between "straightforward moral issues" and "mere moral issues". The law chooses to enforce some moral rules and not others.
I'm not sure we're disagreeing. Legal rules can enforce morality, but they don't have to, and even when they do, they're working from different reasoning. If Becks and Huckabee were just asking a moral question, yes, it would be weird to think that where the fetus was decided its status as a person.
29-Right, but since all states do in fact criminalize murder, and have generally fairly stiff penalties for it, there would be some uniformity to that extent (not that the penalty for abortion, defenses, etc. would have to be exactly the same nationwide). I'd think that'd be bad enough, no? The fact that in some states you wouldn't be death-penalty eligible would be small consolation.
States vary widely on justifiable homicide, though. I believe that up until not too long ago a man in Texas could kill his adulterous wife and her lover if he caught them in the act. And in many states juries are reluctant to convict good man who kills a bad man, regardless of legal niceties.
34: Sure, but the point is that the only reason that murder is uniformly illegal in all states is that the states uniformly agree that murder is (a) morally wrong and (b) is the sort of moral wrong that the state has a compelling interest in addressing. I don't think there's nearly so strong a consensus on abortion.
Until 1974, when it was repealed, [a] Texas statute provided:
Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection ...
Until 1977, Georgia [common law] also permitted a husband or father to kill the paramour of his spouse or child under limited circumstances....
Link
Everyone can agree that murder is morally wrong because the word is morally defined, but there are cases when the law authorizes forms of homicide which many would regard as immoral.
"Separated" presumably means "in one another's presence" rather than "actually humping at the moment".
36-Right, like I said, this would only be an issue if abortion were constitutionalized as murder, by, e.g., a holding that fetuses are 'persons' in 14th Amendment terms. If you have that, then killing a fetus and killing an actual person have to start on an equal footing. I think this is very, very unlikely to happen, but it's also something I'm sure the anti-choicers would very much like, as a way to take the issue largely away from the states without having to rely just on the commerce power or something like that.
35-Yes, clever defenses would be a way for some states to try to get around the problem. But in a (again, unlikely) regime where fetuses are fully invested with rights, I don't know how successful they'd be in withstanding equal protection challenges.
"the paramour of his child"? Holy crap. Just what are those "limited circumstances"?
Of course, I'll be shocked if that isn't the law coast to coast in ten years, if the "CHILD PREDATORS! NOW THERE'S SOME PEOPLE WHOSE DEATHWE CAN ALL AGREE WOULD BENEFIT THE WORLD!" hysteria continues.
Florida and Texas have a much different conception of self-defense from other states.
What's a "paramour"? Does that include rapists?
Or, I should say, it's something anti-choicers are actively pursuing at the state level.
I doubt it. The paradigm you need to be thinking in is 'shotgun wedding'; a law authorizing murder of a (presumably pretty-much-adult) child's paramour is a law authorizing the use of deadly force to compel marriage between two people having premarital sex.
40: If you're suggesting there'd be some sort of equal protection problem in treating the murder of a fetus differently than the murder of a "postnatal person," I really don't see it. The fact that the fetus is living within and dependent upon a woman's body readily distinguishes the "murder" from any other variety of murder. And, as JE has amply demonstrated, the law is perfectly well-prepared to consider differences in circumstance as justifying difference in whether or not the killing is a crime.
But you all are missing the point: the man said, "My plan to secure the border. Two words: Chuck. Norris." If that isn't awesome, I'm proud to be lame.
If Roe v. Wade is overturned, the federal laws banning abortion will be phrased in civil rights terms, guaranteeing the fundamental rights and liberties of the fetus. That's the approach that anti-abortion activists have been talking up for some time now. I believe there's model legislation on the subject among some of those groups, and I see no reason to doubt it would pass in anything like our current legislative environment. The Republicans would all go for it, and so would some Democrats.
If loving morality is wrong, I don't want to be right.
47: There would at least be an equal protection problem that would have to be addressed (it might be solvable, but you'd have to solve it) if a fetus were legally defined as a person (really, at that point the abortion argument turns into precisely the 'sick violinist' argument. And once you have to solve it, there's room for a whole lot of mischief.
47-I don't disagree that that's a perfectly good distinction, I'm just describing what I think is a (somewhat marginal, but nevertheless real--see link in 45) strategy the anti-choicers have available to them, and one that, though unlikely, is not without some internal consistency. In a bizzaro world where fetuses are 14th Amendment persons, I don't know that the distinctions you and I see, or justification defenses clearly designed to carve out killing fetuses from constituting 'murder', would hold up for those who'd get to decide.
Just to point out that jury nullification occurs when jurors consider that a legal crime is morally good or morally excusable -- honor killing, vigilante justice, lynching, and in one case I know of, protection against trespass. So the principle "all murder is morally wrong" becomes either tautological or even false.
If the sick violinist were replaced by a sick black metal guitarist in those hypotheticals, people would realize that abortion can be a wonderful thing.
If fetuses are persons, could a mother-to-be sue her foetal person for invading and occupying her own person? Is there not right of self-defense for women? Wouldn't the right of self-defense, in face, allow the use of lethal force to deal with an intruder who has occupied your own body and refuses to leave?
54: If the woman's life is in danger, certainly.
It would also seem that a husband could shoot a foetus who was occupying his wife's body.
22
"I'm no legal scholar, so maybe somone can enlighten me, but as best as I can reckon, legal geniuses like Thomas and Scalia deal with the ninth amendment by pretending it doesn't exist. Can any of the legal minds here address this question on behalf of the eminent justices (I mean, in case Thomas and Scalia themselves don't comment here)?"
If I recall correctly they will apply the ninth amendment to rights widely accepted at the time the ninth amendment was passed. So for example parents generally have wide discretion to raise their children as they see fit but the biological (adulterous) father of a child born to a married woman has no parental rights.
I don't agree with Becks and Huckabee. There is no absolute morality, it is socially constructed so each society (or state) can have its own.
a paramour is a lover
Under Yexas's mysterious law, is "paramour" a category meaning "person someone has had intimate relations with", thus including rapists?
I was thinking that maybe that was supposed to be giving someone the right to kill someone who raped his daughter, rather than the more horrifying notion of making premarital sex punishable by vigilante death.
If I recall correctly they will apply the ninth amendment to rights widely accepted at the time the ninth amendment was passed.
That's interesting. I'd be curious if you know of a case where Thomas or Scalia agreed with an opinion - minority or majority - that granted some affirmative right on this basis.
Yexas's Mysterious Law sounds like a Dungeons and Dragons item.
I'm pretty sure that the law gave pretty unlimited authority to the patriarch. With minors, consent is irrelevant, and all sex is rape.
61: Mordenkainen's Unintended Consequences.
If morality is the point here, and if it's right or wrong, not just a political question, then you can't have 50 different versions of what's right and what's wrong.
The essential reason for separation of church and state: In a country with a variety of religious beliefs, it's unadvisable to let those who believe they know the "truth" dictate to the motley citizenry.
As for state-by-state: How does one figure out the local "moral" standard? County by county? City by city? I doubt that community standards in, say, San Francisco, match those in the Republican parts of Orange County. Crystal Cathedral, anyone?>
Personally, I'm all for California seceding and becoming its own stem-cell researching, pot-growing, Indian gaming, gay-marrying country. We have the economy and we have yur cheezburgers most of the vegetables and oranges. And Angelina Jolie. Nuke us at your peril!
65: How 'bout Cascadia + California?
60: The analysis is a little more complicated than "accepted at the time the Ninth Amendment was passed," but not too much so. Also please keep in mind that lawyers are terrible historians, which is a pretty good argument against originalism. And note that a lot of the argument takes place with regard to the Due Process Clause(s) rather than the Ninth Amendment.
If you want Scalia's and Thomas's position from the horses' mouths, the best short summaries I can think off right off are probably their separate opinions in Troxel v. Granville.
Morality isn't the point, though. Legality is.
Well, it's a moral issue inasmuch as human rights (including women's rights) are a moral issue.
I think the reason there's less talk about abortion this election cycle is that there have been so many high-profile birth control issues in the last few years that the antis know that we're ready for some push back, and that we've got the tools and evidence we need to win these arguments with the public this time around.
As for state-by-state: How does one figure out the local "moral" standard? County by county? City by city? I doubt that community standards in, say, San Francisco, match those in the Republican parts of Orange County.
The short answer is that the politicians figure it out by figuring out which moral standard is going to get you elected and/or reelected to be one of the people who makes up the laws.
65: The essential reason for separation of church and state: In a country with a variety of religious beliefs, it's unadvisable to let those who believe they know the "truth" dictate to the motley citizenry.
Unfortunately, you just gave one of the strongest arguments against Roe v. Wade (or the recent decisions that struck down criminal laws against homosexual conduct): Anti-abortion and anti-sodomy laws are passed by legislators elected by the people, and are more likely to represent the motley citizenry than are "five unelected justices who think they know better."
I don't think it's really possible to draw a line between morality and legality, as the primary purpose of enacting laws is to achieve goals that society (or a critical mass thereof) feels are moral. Rather, in deciding whether a legislature should "enforce morality," it comes down to how important the alleged moral issues are, and whether the victims of the alleged immoral conduct are in need of protection by the state.
With abortion, I find it hard to dispute Huckabee's reasoning. If you start with the premise that a fetus really is a "person," and that abortion therefore really is murder, then this is such a strong right-or-wrong issue that (IMHO) it should not be left up to the states. Fetuses in Illinois deserve the same protection against murder as fetuses in Utah, just as blacks in Alabama in the 1860s deserved the same protection against slavery as blacks in Massachusetts.
In my view, the fight must be won on the premises, because the reasoning is just too hard to beat.
you just gave one of the strongest arguments against Roe v. Wade (or the recent decisions that struck down criminal laws against homosexual conduct)
Nope. Because Roe v. Wade and anti-anti-sodomy laws don't require people to have abortions or commit sodomy. They require people to refrain from telling other people what they can or cannot do.
71: True, but those cases are both prime examples of the those who believe they know the "truth" dictating to the motley citizenry. The motley citizenry in many places tends to be for criminalizing both abortions and sodomy.
72: No, again, no one is dictating to the citizenry. There's a difference between a positive requirement and a requirement to refrain from issuing positive requirements.
The boundaries between legality and morality are always contested. Federalism just adds more complexity. What Huckabee is saying is that abortion is so terribly a wrong that as long as it remains legal in any place that falls under U.S. law he will be unsatisfied and will keep working to criminalize it. What Becks is saying is that the right to abortion is so fundamental that denying it to women anywhere within our polity would be a travesty. Presumably, since both see abortion in such strong terms, they would want their solutions extended to other countries as well but recognize that they have little influence over other nations' legal systems. Also presumably, Huckabee and Becks would rather have their policy preferences about abortion enacted in a single U.S. state than in no state at all.
This doesn't seem wrongheaded at all. Couching the argument in terms of "morality" is just a rhetorical move to underscore the importance the speaker places on this issue, but that's fine. What's moral, whether an issue is a moral issue or not, how serious we should take a particular moral issue: these questions are all contested in the public sphere and the political process. One way to win is to get people to accept your rhetoric about the morality of a particular issue -- the Civil Rights movement, e.g.
73: I do understand that difference, but I don't think that difference was the point of the post I was referencing (65.1).
Further, I don't personally find that difference to be all that persuasive, at least not in the abortion context.
From the point of view of the anti-choice crusaders, the Supreme Court is telling the citizenry that they have to sit idly by and do nothing while thousands or millions of potential babies are being killed.
66: I'm thinking that most of Cascadia won't really want most of California to come along.
Anti-abortion and anti-sodomy laws are passed by legislators elected by the people, and are more likely to represent the motley citizenry than are "five unelected justices who think they know better."
Not "who think they know better." Who are charged with the responsibility of enforcing rights that are important enough that they ought not be subject to the whims and prejudices of a fickle majority.
Seriously, replace "right to abortion" with "right to free speech" and nobody would seriously argue that state-by-state regulation would be appropriate. The whole point of having a Constitution is that there are some rights that ought not be a question of "majority rules."
From the point of view of the anti-choice crusaders, the Supreme Court is telling the citizenry that they have to sit idly by and do nothing while thousands or millions of potential babies are being killed.
Yes, but that point of view is wrong, because it fails to acknowledge that all those potential babies are part of women's bodies. The difference *ought* to be persuasive because of that simple fact.
Some immoral things are illegal and some aren't. The question is where to draw the line. Huckabee expressed it as though everything moral must be illegal, which goes against 300 years of modern history, which has been a history of secularization and geographical differentiation.
Roe and Wade doesn't require people to have abortions, but it requires citizens to accept abortion as legal and to refrain from interfering with abortion. A comparable law regarding killing adults would not require citizens to kill anyone, but would require citizens to accept killings as legal and to refrain from interfering in killings. I don't see that the "personal freedom" argument works here. You really have to deny that fetuses have the rights of humans and deny that abortion is murder, and you have to argue (second) that women have the individual-freedom right to deal with their pregnancies as they wish.
Bitch, an example that doesn't fit your positive/negative framework is criminalizing spousal rape. I remember when I was younger there was a movement to pass a law criminalizing spousal rape in my state. This seemed completely sensible, and I was actually shocked that it wasn't already illegal -- that there was a category of "spousal rape" that was rape but was legal. Then I overheard my (way conservative) dad talking about it at church with a politically active friend of his; they both thought the law was an awful idea, I suppose because their religious/patriarchal notion of marriage included some awful notion of the husband owning the wife's body in some way. (It actually freaks me out even to start to unpack where they were coming from on this.)
Anyway, the absence of a law banning spousal rape doesn't require men to rape their wives; it just allows them to if they choose to do so in the privacy of their own homes. And yet you and I presumably agree that spousal rape should be illegal just like other kinds of rape, and the main reason we think that is because we think it's seriously morally wrong, wrong enough that it should be a criminal offense.
(To be clear: This is not to analogize abortion and spousal rape, but to point out that good liberals also sometimes want to criminalize acts that some people consider protected by privacy rights.)
You really have to deny that fetuses have the rights of humans and deny that abortion is murder
Not necessarily. You pointed out above that states make all sorts of exceptions for when killing a human being is nevertheless legally justified. So it's at least logically coherent to argue that terminating a life is legally justified when the only way to sustain the life is to subject another individual to the physical and emotional burdens of pregnancy.
Huckabee expressed it as though everything moral must be illegal
Now there's a candidate I could get behind.
81: Well, yeah. You could believe that a fetus was a human being, but still deny that abortion was murder, rather than some legal form of homicide, using the 'sick violinist' argument.
78: I don't see how it's obvious that one of those contradictory facts about fetuses outweighs the other.
78: Yes, but that point of view is wrong, because it fails to acknowledge that all those potential babies are part of women's bodies. The difference *ought* to be persuasive because of that simple fact.
I agree with you. But that's a different issue from whether the motley citizenry or the elite should get to decide what is legal.
77.2: I agree, but that same reasoning applies to the anti-choice side, too, which is what Huckabee was getting at.
Well, I pointed out above that the fetus could be treated as a hostile trespasser and killed. Though frankly, it would make more sense to remove them by force and then prosecute them.
And I also pointed out that the "famous violinist" part of that hypothetical skews thing too much. How about a "not very famous death metal guitarist"? How about a "disappointingly lazy guy who worked in door to door sales but did poorly at it"?
But that's a different issue from whether the motley citizenry or the elite should get to decide what is legal.
I used to know judge who would get incredibly annoyed by people framing his job this way, and I've latched onto his pet peeve. (Separate and apart from the abortion question.) He certainly beat the principle into my head that "judges interpret and apply the law, they don't make it." (I know, I know. Sometimes judges do make the law, like when they decide to adopt a new cause of action as part of the common law -- but this is decidedly rare.)
It is not the job of the elite Justices of the Supreme Court to decide whether or not abortion should be legal. Their job is to interpet and apply the Constitution and determine whether that existing law does or does not guarantee a right to abortion.
Fetus as hostile Trespasser? Isn't that how the Catholic Church treats them when the life of a mother is in danger. As a form of self-defense some sort of "abortion" is considered justifiable homicide.
Now there's a candidate I could get behind.
And do something illegal?
80
But wasn't spousal rape made illegal state by state rather than federally? I believe there are substantial differences among states with regards to rape law.
87-Well, that's formally true, but presumably the legislatures that seek to ban abortion think that it would be constitutional to do so. By privileging judicial interpretation of the Contsitution over everyone else's (and when you have stark splits among the judiciary, the notion that they're just 'finding' the law is a little silly), there's clearly a countermajoritarian problem, which I think was Steve H.'s point.
But countermajoritarianism (or some forms of it) is not self-evidently bad, particularly when it comes to rights enforcement, which by definition will pretty much only arise in a conflict with the majority.
87: That's a good theory, but let's face it, the language of the Fourteenth Amendment ("nor shall any State deprive any person of life, liberty, or property, without due process of law") isn't exactly clear on the abortion issue. So while the judges don't get to decide what's legal, they do get to (or have to) decide what "liberty" and "due process of law" mean.
But wasn't spousal rape made illegal state by state rather than federally? I believe there are substantial differences among states with regards to rape law.
Sure, but I wasn't making a federalism point with the example.
The issue of substantial variance in criminal law among states is a serious one and is connected to the issue Becks raises in her post. On the one hand, if you think a particular state's drug sentencing guidelines get it exactly right in terms of doing whatever those guidelines are supposed to do (exacting the right amount of retribution for a wrong against the social order, deterring undesirable behavior, whatever), you'd have at least some reason to advocate for other states to change their guidelines to match the ideal ones. But you still might not think a federalization of that part of the criminal law is desirable. You'd further have to weigh the benefits and drawbacks of allowing states to experiment with different approaches to sentencing and of allowing states' laws to reflect the differing preferences of the majorities in those states (among other issues) against your belief that an ideal set of guidelines can be arrived at. You might decide that as a procedural matter you want states to be able to decide these things for themselves, accepting the inevitable variation, even though you might give money to an organization that lobbies for each state to adopt the model sentencing guidelines.
76: True. Maybe just the north. SF negotiable.
the absence of a law banning spousal rape doesn't require men to rape their wives; it just allows them to if they choose to do so in the privacy of their own homes.
No; the existence of a definition of marriage as "an institution that precludes rape" is what allowed men to rape their wives. The only reason we have to call it "spousal rape" is to highlight that definition and make the point that rape is illegal--regardless of whether or not the victim and rapist are married.
that's a different issue from whether the motley citizenry or the elite should get to decide what is legal.
No, it isn't. For most of history (and in a lot of places, still) abortion isn't a matter of legislation *at all*--no one is "deciding" what's legal; the statement is meaningless. The problem with your formulation is that it's implicitly accepting that abortion is a matter of law, to be allowed or forbidden. It isn't. The only *legal* issue is whether doctors will be allowed to perform it safely.
Particularly when it comes to rights enforcement, which by definition will pretty much only arise in a conflict with the majority
Not really true, for example if a minority controlling the police and the courts tries to gain dictatorial power.
The problem with your formulation is that it's implicitly accepting that abortion is a matter of law, to be allowed or forbidden. It isn't. The only *legal* issue is whether doctors will be allowed to perform it safely.
B, saying something really loud doesn't make it true. Abortion, or not, is a matter of legislation, regardless of whether it was or not at some point in the past.
Abortion, or not, is a matter of legislation, regardless of whether it was or not at some point in the past.
Hardly. Do you know about the latest Guttmacher study, which shows that abortion rates in countries where abortion's illegal are about the same as those where it's legal?
In other words, like I said before--quietly and demurely--the only legal issue is whether doctors can perform abortions safely.
Come on, B. You're reaching into your opinion barrel again. What a "legal issue" is or isn't doesn't have a whole lot to do with what works or what makes sense, and almost nothing to do with what you think makes sense. Anything can be a legal issue.
You're all making the wrong arguments against Steve H.
"Unfortunately, you just gave one of the strongest arguments against Roe v. Wade (or the recent decisions that struck down criminal laws against homosexual conduct): Anti-abortion and anti-sodomy laws are passed by legislators elected by the people, and are more likely to represent the motley citizenry than are "five unelected justices who think they know better.""
Except that they're not, not in America. Roe is not unusual in that the judiciary overrules the countermajoritarian decisions of the politicians. The justices does generally take public opinion in account.
That's kind of an interesting question, because of federalism, you have to think about who's opinion is being taken into account. Whatever the national opinion polls might have shown the day before Loving v. Virginia came down, I bet polls in Va. were less favorable. Ditto Roe and Texas/Georgia. And Lawrence Texas.
We nearly always act, politically, wearing our citizen of a state hats. The national legislature is made of up people selected by, and responsive to, state polities. (I'm frequently at odds with people here who think, for God knows what reason, that a Democratic congressman from Mississippi ought to be more responsive to the Dem leadership than to what he thinks his constituents want. Or his own gut.)
Why do you people hate America?
"By privileging judicial interpretation of the Contsitution over everyone else's (and when you have stark splits among the judiciary, the notion that they're just 'finding' the law is a little silly), there's clearly a countermajoritarian problem, which I think was Steve H.'s point."
Judicial interpretation of the Constitution is "privileged" because that is the role of the judicial branch in our system of checks and balances.
"You'd further have to weigh the benefits and drawbacks of allowing states to experiment with different approaches to sentencing and of allowing states' laws to reflect the differing preferences of the majorities in those states (among other issues) against your belief that an ideal set of guidelines can be arrived at."
We don't leave issues to states based on whether or not the issue seems like one that is good for experimentation but because, in our federal system, the individual states maintain individual sovereign identity.
"The justices does generally take public opinion in account."
I supposes the judiciary does, as a practical matter, consider public opinion because judges are human and aren't ignorant of what people think. But the whole point of giving them life tenure is to immunize them from public opinion -- to enable them to make the right legal decision without having to worry that doing the right thing is going to cost them their job.
But the whole point of giving them life tenure is to immunize them from public opinion -- to enable them to make the right legal decision without having to worry that doing the right thing is going to cost them their job.
Which probably made sense before judicial appointments became so highly politicized. But when certain justices are frankly ideological (eg, Scalia, who gives speeches on his judicial "philosophy"), and they're in there for life, the principle of judicial review (as against, say, the principle of parliamentary supremacy, which characterizes the British and British-derived systems) begins to look a little bit less than ideal. Checks and balances? Where's the check or balance against a "right-wing phalanx [that] seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance"? Roberts is still young; he could sit on the Court for many decades.
I too don't understand what is meant by "legal issue". It seems to be being used in a sense where any sentence that contains it becomes a tautology and therefore pointless to either agree or disagree with.
What I mean by "legal issue" is pretty specific, as I was replying specifically to Steve's comment. He said
the primary purpose of enacting laws is to achieve goals that society (or a critical mass thereof) feels are moral.
My point is that first, laws against abortion don't stop abortion, because abortion--whether or not you see a fetus as a baby with rights independent of its mother--is a procedure a woman performs (or has performed) on *her own body*, and it's extremely difficult impossible to effectively legislate what people do to their bodies.
And second, that the opposite of laws opposing abortion is manifestly not judges, or anyone else, "enforcing" their opinions on the majority--because an *absence* of laws about something doesn't enforce *anything*. The opposite of anti-abortion laws isn't pro-abortion laws; it's a *lack* of legislation.
Crap, forgot to close the strike command after "difficult."
Anyway, John, saying something loudly doesn't make it true, but then neither does saying something over and over again or dismissing it as (mere) "opinion" without actually trying to understand or engage with what's being said.
Laws against drug use don't stop drug use. It's still a legal issue, what with being written into the legal code and all that.
What I mean by "legal issue" is pretty specific, as I was replying specifically to Steve's comment.
Ah, it makes sense in response to that.
The goal of the law may be to just hurt people and make people unhappy who perform a certain action, even if it's proven that the law does not actually dissuade them from performing that action. This would include both the abortion and many drug laws as mentioned just now.
106: We're probably wandering into useless semantics, but I read the original as something akin to the following:
Whether or not people use drugs isn't a legal issue. People have always used drugs and people will in all likelihood always use drugs. The legal issues are thigs like what punishment, if any, is meted out for the use of certain drugs, whether or not access to safer usage is likely, or even encouraged, to some degree what drugs are available, etc.
101-Judicial interpretation of the Constitution is "privileged" because that is the role of the judicial branch in our system of checks and balances.
Isn't that begging the question? That role has been pronounced by the judiciary itself. It works out very well in a number of ways, specifically when courts steps in to enforce a right that the majority (or majoritarian institutions) seeks to violate. In other ways, it has the potential to thwart legitimate majority preferences (e.g., the new Federalism, which for a while seemed like a real threat, though so far hasn't lived up to it). I don't have an answer, but I don't think there's any denying that judicial review of legislation is entirely unproblematic.
not entirely unproblematic. Damn litotes.
this is basically the same argument that Lincoln used against Douglas.
Where's the check or balance against a "right-wing phalanx [that] seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance"
The check on that is the confirmation process in which our popularly elected Senators have the opportunity -- responsibility -- to block ideological fanatics from receiving life-tenured appointments. The problem isn't that we have a bad system. The problem is that we have spineless twits in the Senate who don't take confirming appointments seriously enough and a fluff-brained public that doesn't consider judicial appointments the type of issue important enough to take our elected officials to task for.