I seem to keep coming back to the following point --- I believe that even a conservative Supreme Court will leave Roe v Wade stand until it can find a way to hold that abortion is illegal as a Constitutional matter. It can then hold that decisions regarding abortions never should have been, and therefore cannot now be, a matter of State law (or to close the circle, a matter of Congressional legislation).
The Supreme Court will never return the jurisprudence on abortion to the legal status of 1970, as if Roe had never happened.
In my analysis, the overturning of Roe would be handled the same way that the Supreme Court tried to in Dred Scott -- by attempting to ensure that the old establshed decision makers (Congress on slavery, and the States on abortion) were not allowed to make new decisions. That is why the two conversations are related. (See Part 2 -- below)
Anyway, the best way for a conservative court to overturn Roe would be to show that the termination of the fetus violates the 14th Amendment rights of the fetus. Since I agree that jurisprudence surrounding the 14th Amendment has always been a complete mess, I don't really think that it would be a long leap for the Supreme Court to state that a fetus is a person under the 14th Amendment, etc. (Although obviously it would be a huge leap politically.)
On that day, I think we will find a lot of the "intent of the Framers" types and the entire "religious right" much more tolerant of finding additional rights in the Constitution. And the folks on the left will feel somewhat differently, too.
Not to open up that old can of worms again, but we had a little sampling of all that earlier this year, when every person in the Bible Belt expected and demanded that the Supreme Court invent what seemed to me to be new fundamental Federal rights for both . Terri Schiavo and her parents.
I am surprised that Terri Schiavo's name did not come up more in the recent stuff on Harriet Miers. Maybe it didn't come up because Harriet Miers was basicially a family dispute amongst conservatives. When the next Supreme Court justice is nominated, Luttig or Alito or McConnell, I hope that Terri Schiavo's name comes up in talking about the fact that judicial activism is always in the eye of the beholder.
Sunday, October 30, 2005
The Intent of the Framers -- The Dred Scott Decision
The Supreme Court in Dred Scott said that Congress had no right to ban slavery in the territories that were not yet states. (In the case of Dred Scott it was Wisconsin, but as a political matter, Wisconsin was really a stand-in for Kansas and Nebraska and New Mexico. Nebraska and New Mexico both being much larger then than now.)
Until Dred Scott, Congress assumed that it had the power to regulate slavery in the territories before they became states, and exercised that power from the Northwest Ordinance in 1787 through to the Kansas-Nebraska Act in 1854. Congress, and everybody else, knew that its use of this power would pre-determine which way the newly admitted state would decide the slavery issue. That is why the Dred Scott court was so determined to limit Congressional power.
Commenting on the implications of Dred Scott was the topic of much of Abraham Lincoln's political activities in those days. Lincoln's "House Divided" speech, for example, talks about the conspiracy to rebuild the house. Lincoln imagined a Dred Scott II type of decision that would require every state to accept slavery. That was a pretty paranoid charge. Still, Lincoln gained a lot of support by saying those things. The Supreme Court's silence, and what it might do next, also came up a lot in the Lincoln - Douglas debates.
And Lincoln's Cooper Union speech was an attempt, through statistical analysis, to show that the 39 men who were both at the Constitutional Convention and who served in Congress, firmly believed in the right of Congress to limit slavery in the territories and were not in favor of slavery as anything other than a short-term resolution. Lincoln would refer to it as "putting slavery on the road to ultimate extinction" According to Lincoln, back in the time of the Framers, even the Southern Framers were in favor of limiting slave
Until Dred Scott, Congress assumed that it had the power to regulate slavery in the territories before they became states, and exercised that power from the Northwest Ordinance in 1787 through to the Kansas-Nebraska Act in 1854. Congress, and everybody else, knew that its use of this power would pre-determine which way the newly admitted state would decide the slavery issue. That is why the Dred Scott court was so determined to limit Congressional power.
Commenting on the implications of Dred Scott was the topic of much of Abraham Lincoln's political activities in those days. Lincoln's "House Divided" speech, for example, talks about the conspiracy to rebuild the house. Lincoln imagined a Dred Scott II type of decision that would require every state to accept slavery. That was a pretty paranoid charge. Still, Lincoln gained a lot of support by saying those things. The Supreme Court's silence, and what it might do next, also came up a lot in the Lincoln - Douglas debates.
And Lincoln's Cooper Union speech was an attempt, through statistical analysis, to show that the 39 men who were both at the Constitutional Convention and who served in Congress, firmly believed in the right of Congress to limit slavery in the territories and were not in favor of slavery as anything other than a short-term resolution. Lincoln would refer to it as "putting slavery on the road to ultimate extinction" According to Lincoln, back in the time of the Framers, even the Southern Framers were in favor of limiting slave
The Intent of the Framers -- Marbury v Madison and the Civil War Amendments
When originalists say that the Supreme Court should interpret the Constitution solely by the intent of the Framers, and the Supreme Court should have no more power than a Surrogates Court, one of the points some of the originalists are trying to make is that MARBURY v MADISON (1801 -- one of the key cases regarding Judicial Review) itself was wrongly decided
Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".
In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.
One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.
For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.
About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.
Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?
Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".
In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.
One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.
For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.
About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.
Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?
Saturday, October 08, 2005
A Quote From Daniel Webster
They do not remember that the doctrines and the miracles of Jesus Christ have, in eighteen hundred years, converted only a small portion of the human race; and among the nations that are converted to Christianity, they forget how many vices and crimes, public and private, still prevail, and that many of them, public crimes especially, which are so clearly offences against the Christian religion, pass without exciting particular indignation. Thus wars are waged, and unjust wars. I do not deny that there may be just wars. There certainly are; but it was the remark of an eminent person, not many years ago, on the other side of the Atlantic, that it is one of the greatest reproaches to human nature that wars are sometimes just.
Daniel Webster
(Whig -- Massachusetts)
March 7, 2005
(On the Floor of the Senate)
Daniel Webster
(Whig -- Massachusetts)
March 7, 2005
(On the Floor of the Senate)
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