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Tuesday, January 24, 2006

Why I Read DU

I don't like Kos. It is stupid and often hysterical. But the free-ranging discussion on DU and the huge number of participants tells a lot about our country. Take, for example, this gem of a discussion on Roe V. Wade. It begins with a post suggesting a constitutional amendment so that abortion will always be legal. And then a serious and substantive discussion ensues:
3. Of course they will...
I don't expect it to happen without a hell of a fight. I do think it is a "winning issue," that deserves to go through the political process...Getting the Constitution changed can take years, during which we keep hammering away at the minority who will fight it. This is not only practical, it is political and Dems are on the correct side of it.

4. IMHO this is the wrong approach what you need is a LAW passed in congress and found constitutional. The "right to privacy" is only a small part of the motives to allow abortion : the main reasons are women rights, health rights and social rights.

the "right to privacy" doesn't really exists in the US constitution. It's a mere penumbral interpretation of privacy regarding other matters. It has been chosen as a motive to avoid a real popular discussion. A law allows to REGULATE under what forms abortion can be performed and thus win a broad consensus. Trying always to amend a 220 yeras old text through judicial interpretation is a very dangerous way specially in a system with a supreme court elected for life.

7. The problem with statute...
is that they can always be declared unconstitutional, regardless of if they are or not. Once it's a part of the constitution (and, the wording would have to include language making it clear just what this "right to privacy" covers)..it doesn't matter what the Supreme Court thinks of it...it, by definition, becomes "constitutional."

11. I don't know what you mean by "statute" but a law can be declared "constitutional" by a court. The advantage of leaving a certain amount of liberty (to the electors through Congresses or Parliaments) is that the law can be easily amended and changed in a democratic process, since humans evolve. In the future, abortion might not be needed or regulated differently due to progress in science. Is the constitution to be "amended" again ?
The US are pretty alone among democracies with the Supreme Court system, specially with one with so few counter-powers and so much power. All the nomination procedure and discussion today shows that the court is only a political instrument and not a real independent entity.

IMHO the best solution from a democratic point of view is to have the supreme legislative power to an elected body.
A supreme court should only rule in civil and criminal matters as the last level of appeal, but NOT on constitutional matters (separation of powers). The constitutionality of laws could be delegated to a special "council" with both lawyers and elected laymen.

For me a constitution is only a frame that presents the rules of the game. It cannot replace law. I have read that many European lawyers are concerned (from a general standpoint) by the fact that judicial discussion in the States replaces lawmaking. It's like making the referee DURING the football game dictate the rules and even invent new ones. But the referees role is to apply the rules, not to invent them.
Note that this is not a rare "progressive" position. Marxists have been out to dump the Constitution from day one. They would love, for instance, to have international law trump those backward provisions about individual liberties in the Constitution. Whenever you read "active liberty", there is usually a Marxist behind the phrase. But a large number of people on DU aren't Marxists, but actual Democrats, so...
13. Maybe you're not getting what "checks and balances" means.
The Supreme Court is the check on the power of the executive and the legislative branches. In a panic situation, like after 9/11, the legislature can be stampeded into passing laws that are, shall we say, ill-advised. (Patriot Act, anyone?)
The Supreme Court's duty is to decide if that law is in accordance with the constitution -- which is not simply a framwork upon which the law hangs, but the ultimate law of the land.We can't forget, Hitler's seizure of power was not complete until he had taken control of the judiciary -- control the people who decide what is and is not legal, and you control the nation.

Exactly, which is why the Marxists are seeking to seize control of the judicial system in the US. There is further discussion on political strategy and much more on these two opposing views of law. It is this legal debate which makes it such a pressing necessity to put originalist and textualist judges who believe that the Constitution is the supreme law of the land on the Supreme Court. Lose that, and we have lost the Constitution. Lose the Constitution, and we have lost democracy entirely.

Rambling, yet good stuff. Here's my comment you may run past at D.Sanity's blog. It references a very good dicussion (regardless of the ending, with which you may disagree) of the artificial nature of that 'right to privacy.'
It strikes me that most Americans have LESS privacy since this 'right' was invented. Was it conceived just to shield abortion and then, Pandora like, all these other deadly sins tumbled out?
(DS comment below)
I am always suspicious when a public figure (Left for the most part) invokes 'the constitution.' IT's something the figure often has little acquaintance with, or allegiance to.

Rick Moore at (http://holycoast.blogspot.com ) has given us a link to an Alito-type writing that does respect the Constitution.

It's from Texas:
Figment of imagination
--There is no constitutional right to privacy.-- http://www.chron.com/disp/story....ok/ 3587727.html

I like intelligent discussion of the Law.

Q: If men such as Judge DeMoss ruled the courts, would Al Gore, Ted, the Clintons, indeed go 'over the top!'
In fact, the intent of the DU 'frame' guy, will no doubt be lost- and if not lost, then it will be deliberately buried.

For the DU crowd, the constitution exists only to serve their needs and wants- and to opress those who don't share that view.
jng, the law can definitely be an instrument of aggression. The left is trying to use it that way.

Yes, of course we have lost privacy. But I believe that we have lost privacy because society has become more permissive. When you silence the weapon of social disapproval, the only thing you can use to prevent societal breakdown is the blunt, awkward and destructive hammer of the law.

No one who has even read the Constitution as law can seriously believe that the "Right of Privacy" is contained therein.

SC&A, not all of them. There is a clear battle going on at DU.
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