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.
Showing posts with label Dred Scott. Show all posts
Showing posts with label Dred Scott. Show all posts
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
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