Sandra Day O'Connor Retiring

Archived discussion from Toril-2.
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Sandra Day O'Connor Retiring

Postby Birile » Fri Jul 01, 2005 4:38 pm

For anyone who did not know this already, Justice O'Connor is retiring from the Supreme Court of the United States once a successor is confirmed by the U.S. Senate.

One of the biggest things that has been on my mind in the past couple of years has been the aging Supreme Court (if you read my Civil Rights post several months ago - http://www.torilmud.org/phpBB2/viewtopic.php?t=14626 - you know this already) and the impact that a vacancy on the Supreme Court--and subsequent opportunity for a Supreme Court appointment--during President Bush's term in office would have on the face of American law in the years to follow. Justice O'Connor is not the only expected vacancy to occur during Bush's tenure (Rehnquist and Stephens are also expected to vacate office in the very near future, and Ginsburg may not be far behind).

I'm curious to know what everyone's thoughts on this topic are, ranging from whether you thought O'Connor was a "good" associate justice, who you think Bush will nominate (either specific nominees or the "type" of nominee in general), what the impact will be of this and other potential vacancies in the two or three years to come, etc.

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Postby kiryan » Fri Jul 01, 2005 4:48 pm

i hope bush gets a moderate conservative through for every vacant seat.

ok so i dont really because it would probably be pretty chaotic when abortion was made illegal again and gay marriage is thrown out. however, it would be interesting to see what would happen if very liberal people could handle living under conservative law where as conservative people have had to face the legal reality of fairly liberal laws in the last 30 years.

i respect the abortion and gay marriage reality because its specifically granted by law, but id prefer if it were illegal.
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Postby Raiwen » Fri Jul 01, 2005 6:19 pm

Personally, I always feel it's better to say you're ALLOWED to do something, than say you CAN'T do something else.

In democratic societies, the laws protecting our freedoms are what make the society so enjoyable.

In facist societies, it's the laws preventing freedom that keep the leaders in power.

So...

Which laws do you prefer? The ones protecting our freedoms? Or the ones keeping the powerful - well - powerful?
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Postby Disoputlip » Fri Jul 01, 2005 6:27 pm

If abortion was made illigal then many would get it done in Mexico. And some would molest themselves to kill the child. I think supeme court also take those practical approaches, not just the principial discussion.

I think it is good old people run countries. There are too many young people in politics. I think i agree with Plato here. (Except i think it should be both gender, not only male).
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Postby Corth » Fri Jul 01, 2005 6:50 pm

I just want to see a Supreme Court that interprets law rather than makes it. Supreme Court Justices are not elected. They have lifetime tenure. The Court is simply not a suitable entity for resolving policy differences. In a democracy, elected legislators make law. That a Supreme Court vacancy is so important to special interest groups is indicative of the fact that it is seen as a venue for pushing one's position without the difficulty of electing people that agree with you.

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hmph

Postby Nikelon » Fri Jul 01, 2005 8:02 pm

kiryan wrote:i respect the abortion and gay marriage reality because its specifically granted by law, but id prefer if it were illegal.


Indeed. And I'd prefer that african-americans couldn't marry white people or adopt our white children. It just ain't natural to have dark skin...they must be inferior and lord knows they'll corrupt our youth beyond salvation. Same for women. Obvioulsy they're too weak to hold any sort of clout in today's society. They should stick to the kitchen and the bedroom - it just ain't natural for them to expect any sort of rights, as inferior as they must be.

I'm just as close-minded in my open-mindedness as any other opinioned person. But I'll try to listen if you can explain just how your situation is different.
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Postby Yasden » Fri Jul 01, 2005 9:46 pm

Long live rednecks. Go dubya! *snort*
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Postby Kifle » Sat Jul 02, 2005 1:47 am

Birilie, I'm scared :( Hold me...

I think it's quite ovbvious Bush plans on seating people to push his own agenda. Hell, I think all of us would, so you can't blame him for that. However, I don't think his agenda is very American. I have seen more of my freedoms and rights limited in his administration than any other since my birth. I think that if he seats his choice of court justices, this trend will continue past his terms unless something happens to the power balance in congress. I think this government runs best when there is a mix of conservitives and liberals in office. I don't think that has happend and I think a lot of Americans have been ignored and abused. Again, I'm very scared :(
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Postby Imis9 » Sat Jul 02, 2005 3:18 am

Amen Corth. Let the legislative branch make laws, and let's hope Bush picks someone that knows that judges are there to check laws against the Constitution not to create new rights out of thin air. If you want to create a new right, go pass an amendment to the constitution.

Personally, I'm hoping for Gonzales for O'Connor's spot myself. He's a very good, conservative judge although there are other good choices. With the liberals on the Supreme Court destroying our civil rights with rulings like the one about property rights and the government's ability to steal your land to give to others, America needs to get a more conservative interpretation of the Constitution to save us from a government run by communists, er ah, liberals.

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Postby teflor the ranger » Sat Jul 02, 2005 4:04 am

Raiwen wrote:In democratic societies, the laws protecting our freedoms are what make the society so enjoyable.

In facist societies, it's the laws preventing freedom that keep the leaders in power.


"Protecting Freedom"

The freedom to shoot people denies the freedom to life.

The freedom to slander and libel denies the freedom to privacy.

The freedom to steal denies the fredom to personal security.

The freedom to do as you please denies the freedom to due process.

I hate to have to remind people of this, but the people in Congress, the White House, etc...

Government of the people, by the people, and for the people.

They are OUR leaders.

The rule of law defends freedom, and does not deny any more freedom than what freedom would have denied itself.

When the branch of Justice starts playing the role of the Legislative, it is the duty of the Executive to select some new judges.

That's balance. Check, please.
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Postby Raiwen » Sat Jul 02, 2005 7:42 am

You are such a troll, and your arguments stink like one, too.

teflor the ranger wrote:The freedom to shoot people denies the freedom to life.

The freedom to own firearms is not a license to shoot people. A-holes with weapons kill people.

teflor the ranger wrote:The freedom to slander and libel denies the freedom to privacy.

That's the risk you have to take in order to have the freedom to voice an opinion that differs from public (or government) norms. No one said the right to speech also gives you a free ticket to say anything without consequence. You always gotta pay the piper.

teflor the ranger wrote:The freedom to steal denies the freedom to personal security.

That is also a risk we take in order to keep our liberties. There are two general ways to curb thievery: (1) limit the rights of the populace so they can't do anything without the government knowing, or (2) make the punishment for thievery severe enough against their personal liberty and well being that people live in harmony with each other.

teflor the ranger wrote:The freedom to do as you please denies the freedom to due process.

Uhm. What planet are you on? Don't be a moron. Via Websters Online Dictionary, "due process" is the duty of the courts to ensure that laws may not be used to cause unfair arbitration nor treatment of an individual.

But basically, you're trying to say "people can't just do what they want, cause that'll hurt other people". Duh. Our founding fathers believed every citizen was entitled to life, liberty and the pursuit of happiness [Declaration of Independence, July 4th, 1776] So, you can't do anything you want, especially if what you want to do will deny someone else their life, liberty or their pursuit for happiness.

teflor the ranger wrote:I hate to have to remind people of this, but the people in Congress, the White House, etc...

Government of the people, by the people, and for the people.

They are OUR leaders.

Just because they are our leaders, doesn't mean they can't be WRONG. It is our RIGHT to question their decisions. If you're a voting adult, you're not a kid anymore. You're .. well.. an adult! You can question things! It's allowed! It should be encouraged!

teflor the ranger wrote:The rule of law defends freedom, and does not deny any more freedom than what freedom would have denied itself.

No, our constitution was designed to ENSURE freedom. Our laws are there to keep ORDER. Our military is there to DEFEND our way of life (and thus by extension - FREEDOM). When a law (and it's interpretation of it - the role of the courts is to interpret the laws), is found to deny the freedoms set forth in our constitution it is called "unconstitutional".

teflor the ranger wrote:When the branch of Justice starts playing the role of the Legislative, it is the duty of the Executive to select some new judges.

That's balance. Check, please.

However, the Judicial branch is not making laws.. it's interpreting existing laws. Laws have meanings. These meanings change over time, depending upon the frame of mind of the current populace. Please read up on the phrase "spirit of the law", then get back to me when you got a clue.
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Postby moritheil » Sat Jul 02, 2005 11:25 am

Raiwen wrote:That's the risk you have to take in order to have . . .


Ironically enough, I believe that's the point he was trying to make - albeit with slightly different conclusions.
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Postby Raiwen » Sat Jul 02, 2005 3:13 pm

moritheil wrote:
Raiwen wrote:That's the risk you have to take in order to have . . .


Ironically enough, I believe that's the point he was trying to make - albeit with slightly different conclusions.

Base on his last few paragraphs, I understood his point to be that our leaders have the public's interest at heart, they make laws, laws protect our freedom and don't infringe on our freedom anymore than a lawless society would, and the judicial branch is now creating laws - which is wrong.
teflor the ranger wrote:Government of the people, by the people, and for the people.

They are OUR leaders.

The rule of law defends freedom, and does not deny any more freedom than what freedom would have denied itself.

When the branch of Justice starts playing the role of the Legislative, it is the duty of the Executive to select some new judges.

The beginning of his reply is basically trying to prove that:
Raiwen wrote:In democratic societies, the laws protecting our freedoms are what make the society so enjoyable.

In facist societies, it's the laws preventing freedom that keep the leaders in power.

is somehow flawed. I'm not sure how he was trying to prove it was flawed, as I never stated I didn't believe in laws. I do. Laws provide order, but they can also be used to deny freedom, or be used to protect an individual's freedom. He somehow missed that entire point and wanted to tell us that our leaders are good, laws are good, freedom is good, so don't question things that are good!
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Postby teflor the ranger » Sat Jul 02, 2005 5:17 pm

Raiwen:

You're ignorant.
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Postby Raiwen » Sat Jul 02, 2005 5:20 pm

teflor the ranger wrote:Raiwen:You're ignorant.

You're a troll.
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Postby teflor the ranger » Sat Jul 02, 2005 5:37 pm

Raiwen's Ignorance:

Raiwen wrote:You are such a troll, and your arguments stink like one, too.


Funny, the unprovoked insults and utter lack of anything intelligent would actually make you the troll.

Raiwen wrote:
teflor the ranger wrote:The freedom to shoot people denies the freedom to life.

The freedom to own firearms is not a license to shoot people. A-holes with weapons kill people.


Funny, I was speaking about the freedom to shoot people, not the right to keep and bear arms. Of course, if you can't say anything intelligent, make some dumb stuff up.

Raiwen wrote:
teflor the ranger wrote:The freedom to slander and libel denies the freedom to privacy.

That's the risk you have to take in order to have the freedom to voice an opinion that differs from public (or government) norms. No one said the right to speech also gives you a free ticket to say anything without consequence. You always gotta pay the piper.


Funny, that is exactly the point I am making, it's just too bad you are too blind and impotent to see it.

Raiwen wrote:
teflor the ranger wrote:The freedom to steal denies the freedom to personal security.

That is also a risk we take in order to keep our liberties. There are two general ways to curb thievery: (1) limit the rights of the populace so they can't do anything without the government knowing, or (2) make the punishment for thievery severe enough against their personal liberty and well being that people live in harmony with each other.


Funny, because that's also what I am trying to say, that the rule of law protects freedom overall.

Raiwen wrote:
teflor the ranger wrote:The freedom to do as you please denies the freedom to due process.

Uhm. What planet are you on? Don't be a moron. Via Websters Online Dictionary, "due process" is the duty of the courts to ensure that laws may not be used to cause unfair arbitration nor treatment of an individual.


Funny how doing as one pleases in society could cause unfair treatment of an individual.

Raiwen wrote:But basically, you're trying to say "people can't just do what they want, cause that'll hurt other people". Duh. Our founding fathers believed every citizen was entitled to life, liberty and the pursuit of happiness [Declaration of Independence, July 4th, 1776] So, you can't do anything you want, especially if what you want to do will deny someone else their life, liberty or their pursuit for happiness.


Funny, you did notice you just couldn't put two and two together.

Raiwen wrote:
teflor the ranger wrote:I hate to have to remind people of this, but the people in Congress, the White House, etc...

Government of the people, by the people, and for the people.

They are OUR leaders.

Just because they are our leaders, doesn't mean they can't be WRONG. It is our RIGHT to question their decisions. If you're a voting adult, you're not a kid anymore. You're .. well.. an adult! You can question things! It's allowed! It should be encouraged!


Funny how you don't realize that they're the leaders you chose and you can chose to replace them. Funny that you don't realize that we give them all these powers and protections in order for them to do their jobs. Funny how we guarantee certain legal recourse and secrecy so that they can do what is needed to be done without having to answer to every minute and second bum that knows nothing about nothing like say...

Raiwen wrote:
teflor the ranger wrote:The rule of law defends freedom, and does not deny any more freedom than what freedom would have denied itself.

No, our constitution was designed to ENSURE freedom. Our laws are there to keep ORDER. Our military is there to DEFEND our way of life (and thus by extension - FREEDOM). When a law (and it's interpretation of it - the role of the courts is to interpret the laws), is found to deny the freedoms set forth in our constitution it is called "unconstitutional".


Funny how I was talking about the rule of law. Funny it is the consitution that determines what is unconstitutional. Funny how the Constitution provides for the court which determins what is unconstitutional. Funny how the rule of law seems to defend freedom eh?

Raiwen wrote:
teflor the ranger wrote:When the branch of Justice starts playing the role of the Legislative, it is the duty of the Executive to select some new judges.

That's balance. Check, please.

However, the Judicial branch is not making laws.. it's interpreting existing laws. Laws have meanings. These meanings change over time, depending upon the frame of mind of the current populace. Please read up on the phrase "spirit of the law", then get back to me when you got a clue.


Funny how you seem to have brought up a total sum of ZERO arguments, three direct insults, and proof that you don't seem to be able to interpret things.

It's your ignorance, not mine. You, sir, are the troll.

"get back to me when you got a clue."
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Postby teflor the ranger » Sat Jul 02, 2005 5:49 pm

Raiwen wrote:
moritheil wrote:
Raiwen wrote:That's the risk you have to take in order to have . . .


Ironically enough, I believe that's the point he was trying to make - albeit with slightly different conclusions.

Base on his last few paragraphs, I understood his point to be that our leaders have the public's interest at heart, they make laws, laws protect our freedom and don't infringe on our freedom anymore than a lawless society would, and the judicial branch is now creating laws - which is wrong.


Ironically enough, your interpretation - which is wrong - is lacking several critical elements.

Regardless of whether or not our leaders have the public's interest at heart, we pick and choose them and have ample opportunity to get rid of ones who clearly do not have the public's interest at heart.

Furthermore, the judicial branch can indeed effect legislation in a way as effective as the creation of a new law. Several controversial cases end up with judicial decisions in which laws were interpreted in a much different fashion than they had been intended to be interpreted.

Raiwen wrote:
teflor the ranger wrote:Government of the people, by the people, and for the people.

They are OUR leaders.

The rule of law defends freedom, and does not deny any more freedom than what freedom would have denied itself.

When the branch of Justice starts playing the role of the Legislative, it is the duty of the Executive to select some new judges.

The beginning of his reply is basically trying to prove that:
Raiwen wrote:In democratic societies, the laws protecting our freedoms are what make the society so enjoyable.

In facist societies, it's the laws preventing freedom that keep the leaders in power.

is somehow flawed.


Ironically enough, your interpretation - which is wrong - seems to reveal a sort of close-minded thought process that you've been applying to this entire discussion.

I actually, in fact, replied to it in order to guide your statement and add to it, Mr. Troll.

Raiwen wrote:I'm not sure how he was trying to prove it was flawed, as I never stated I didn't believe in laws.


The reason you're not sure how is because I wasn't.




Now, Mr. Raiwen, if you're done with the kneejerk reactions, the unprovoked insults, and the dull insistance that I am merely trying to argue against you, we can get back to being civil?
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Postby Raiwen » Sat Jul 02, 2005 7:46 pm

teflor the ranger wrote:Funny, the unprovoked insults and utter lack of anything intelligent would actually make you the troll.

When you troll for posts, I will gladly oblige.

teflor the ranger wrote:Funny, I was speaking about the freedom to shoot people, not the right to keep and bear arms. Of course, if you can't say anything intelligent, make some dumb stuff up.

Oh, I'm sorry. I thought you wanted to have an intelligent debate, not some fairy tale you made up in your head. So, tell me again in this fairy tale, how the freedom to shoot people is not related to the freedom to keep firearms? In this world of yours, do people shoot laser beams out of their eyes?

teflor the ranger wrote:
Raiwen wrote:That's the risk you have to take in order to have the freedom to voice an opinion...

Funny, that is exactly the point I am making, it's just too bad you are too blind and impotent to see it.

To quote Inigo " I do not think it means what you think it means." My "lacking in power, strength of vigor" has nothing to do of whether I can decipher your ramblings. The very fact that you can't convey your ideas clearly to me means that you must spend more time organizing your thoughts before you hit "Send".

teflor the ranger wrote:Funny, because that's also what I am trying to say, that the rule of law protects freedom overall.

Then why attempt to disprove my statements earlier about laws being designed to enslave the populace or free it? While the concept of the rule of law is generally acknowledged to be fundamental to democracy, it in and of itself does not address how those laws uphold another concept: Justice. Therefore, to say that the rule of law defends freedom, is analogous to saying space ships take us to outer space. While it is technically true, it is a disservice to the debate at hand. You need more meat on your arguments.

teflor the ranger wrote:Funny how doing as one pleases in society could cause unfair treatment of an individual.

It's not funny. It's common sense. It is funny how you completely ignored that I called you out on the fact that you used the idea of "due process" in the wrong context!

teflor the ranger wrote:
Raiwen wrote:So, you can't do anything you want, especially if what you want to do will deny someone else their life, liberty or their pursuit for happiness.

Funny, you did notice you just couldn't put two and two together.

Sure you can. I'm not talking about Anarchy when I'm talking about freedom. This is a poor debate tactic to use: you're trying to boost your argument by redefining the core concepts into things that no body in their right mind would want to defend. I'm not advocating all out social debauchery.

teflor the ranger wrote:Funny how you don't realize that they're the leaders you chose and you can chose to replace them. Funny that you don't realize that we give them all these powers and protections in order for them to do their jobs.

It would be a perfect world if the leaders we elect actually performed the duties we elected them for. Instead, I find more and more of the new laws and agendas being followed after 9-11 are due to the direct influences of a minority of fundamentalists of which I do not belong. It is therefore with in our right to protest against these activities. If an election was held tomorrow, GW would not be elected back into office. His approval rating during the elections was 53%, his approval rating now is 46%. The margin of his win in several swing states was a lot lower than 7%. but guess what Teflor? We're stuck for another 3 years!

teflor the ranger wrote:Funny how the rule of law seems to defend freedom eh?

Like I said, the rule of law says nothing about how those laws uphold the concept of justice. There is way more than just that single concept involved. My original post was talking about how laws can be used to further the agenda of those in power. Even dictatorships can coexist with the rule of law, the presence of that concept in a society doesn't automatically mean freedom as we know it will manifest itself.

teflor the ranger wrote:Funny how you seem to have brought up a total sum of ZERO arguments, three direct insults, and proof that you don't seem to be able to interpret things.

If what I wrote doesn't count in your world as an argument, then perhaps we're not really arguing the same thing. As for the insults, they were a deliberate challenge to your trolling post. The first was tongue and cheek. The second was analogous to saying "don't be stupid". While not entirely free of insult, normal people hold it to have the connotative definition of "what you just said/did was really dumb".

teflor the ranger wrote:"get back to me when you got a clue."

And that was a challenge to actually get your thoughts in order, and to use the ideas in your arguments in the correct context!
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Postby Raiwen » Sat Jul 02, 2005 8:45 pm

teflor the ranger wrote:Regardless of whether or not our leaders have the public's interest at heart, we pick and choose them and have ample opportunity to get rid of ones who clearly do not have the public's interest at heart.

Then I feel we should start this process now. I don't want anymore homeland security measures influencing my life. Safety should not be aquired with the total cost of our liberty.

However, I wasn't arguing whether or not our public servants have our best interst at heart, and whether we can remove them from office. I was arguing that not all laws are good, and what is worse than the law is the motivation behind the law. thus, some laws aim to provide more freedom, while some aim to restrict it. there needs to be a balance between the two, and lately the balance is not tipping in our favor.

teflor the ranger wrote:Several controversial cases end up with judicial decisions in which laws were interpreted in a much different fashion than they had been intended to be interpreted.

Thus the "spirit of the law". However, just because it is interpreted differently today than it was when it was introduced is OK. That's how it's supposed to work. Prime example? DMCA. It is being abused, but I have faith that our system will figure out what the DMCA is really supposed to cover.

teflor the ranger wrote:I actually, in fact, replied to it in order to guide your statement and add to it, Mr. Troll.

Your wording suggested otherwise. Using phrases such as "freedom to shoot people" is inflamatory and not exactly suggestive of "guiding". But ok, if that's what you meant, please explain in a different way, because I obviously could not follow it the first time.

teflor the ranger wrote:
Raiwen wrote:I'm not sure how he was trying to prove it was flawed, as I never stated I didn't believe in laws.


The reason you're not sure how is because I wasn't.

In my last post, I did state that perhaps we were not arguing the same thing.

teflor the ranger wrote:we can get back to being civil?

absolutely!
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Postby teflor the ranger » Sat Jul 02, 2005 9:34 pm

You know, I get this funny feeling you still haven't quite exactly figured it out yet, but whatever.

Anyways, the original point is that the process of law and its effects are often times more than what meets the eye. One law that may seem to prevent freedom may actually defend it.
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Postby Disoputlip » Sat Jul 02, 2005 10:40 pm

teflor the ranger wrote:...rant...

Anyways, the original point is that the process of law and its effects are often times more than what meets the eye. One law that may seem to prevent freedom may actually defend it.


The most extreme view some politicians have is that police should be able to survailance all people. Because if you are not doing anything illigal, then you have nothing to fear.

This is a very dangerous attitude because it opens up for corruption in many ways. Thats why "law security" (I hope that word is translatable to english) is a major topic for those that make laws (politicians).
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Postby teflor the ranger » Sun Jul 03, 2005 7:50 pm

Yes but this is an extremist attitude, and to pay too much heed to extremists is to become one and an idiot.

In truth in a free society where due process is a protected right, there is little reason to fear law enforcement. Especially in a country of lawyers and the civil lawsuit.

In dangerous times, all executive administrations have taken on additional and unusual powers. The only fear should be in when the are not given back to the people when demanded by their representatives (when Congress asks for them back).

Some of the country's leadership heros of modern times, for instance, Abraham Lincoln took such extreme powers that they boggle the mind.

Lincoln actually arrested Maryland state legislators and ordered the shut down of the government of the state of Maryland previous to the Civil War.

FDR compelled American Citizens into concentration camps during World War II and instituted a massive nationwide general military draft, despite the fact he ran for president on the platform of "your sons will not fight in any foreign wars." He also served for three terms.

The fact remains that in this country we have a rule of law. Many of these extremist designs have been around for CENTURIES and will see no more the light of day than it has in the nation's long history.
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Postby shalath » Mon Jul 04, 2005 7:03 am

Corth wrote:I just want to see a Supreme Court that interprets law rather than makes it. Supreme Court Justices are not elected. They have lifetime tenure. The Court is simply not a suitable entity for resolving policy differences. In a democracy, elected legislators make law. That a Supreme Court vacancy is so important to special interest groups is indicative of the fact that it is seen as a venue for pushing one's position without the difficulty of electing people that agree with you.

Corth


While it's rare for me to "weigh in" on a political thread (mainly because the American idea of what politics is scares the living daylight out of me), this caught my interest. I've often thought it odd that the Supreme Court Justices are appointed by the current administration when needed, and then have a lifetime tenure, yet they provide the highest legal authority in the land and thus by precedent define the law. Here in the UK we have a similar non-elected body of law lords who, rather than being politically appointed, are lifetime holders of an inherited title. Is there something about democracy that requires a body independant of the electorate to sit at the top of the court system, "just in case"?

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Postby Corth » Mon Jul 04, 2005 4:10 pm

Shalath:

Very good question. Actually, when the Constitution was written, it wasn't exactly clear whether their decisions would be binding upon the other branches of Government, specifically, the Executive (President), and the Legislative (Congress). One view was that each Branch is bound by the Constitution and must interpret it individually. The case of Marbury v. Madison in the early 1800's settled that controversy, and basically was a big power grab by the Supreme Court.

Essentially, the Constitution is supposed to be a limit on Federal power. The Constitution was framed soon after the Revolutionary war and is, to an extent, a reaction against British abuses. The framers believed (and I agree) that government will find ways to abuse its power unless limited in some manner. Thus the Constitution basically says that the Federal Government cannot do ANYTHING, except for several things that are listed in the document. Everything else is relegated to the State governments. To the extent that the Constitution is supposed to limit the power of the Federal Government, it makes sense that the Executive and Legislative branches be bound by the Court's interpretation of it. Otherwise it would be very easy to get around its constraints.

The theory behind lifetime appointments to the Federal Judiciary is that in interpreting the Constitution, which remember is supposed to be a constraint on Federal power, those who make the decisions should not be influenced by politics. If you need to be re-appointed or re-elected in a couple of years, then it might influence the way you interpret the law. Thus, lifetime tenure protects the Federal Judiciary's independent judgment.

For a very long time this system has worked very nicely. Unfortunately, it seems to me that the Federal Judiciary has started to routinely abuse its own unchecked power. The Constitution no longer acts as a constraint on Federal Action. For instance, the Federal Government can basically do whatever it wants under a broad reading of the Commerce Clause by the Supreme Court. Additionally, the Supreme Court has very creatively found individual rights in the Constitution which are very difficult to justify from an actual reading of the Constitution, such as the Constitutional right to an abortion created in Roe v. Wade.

The official check on the power of the Federal Judiciary is the power to amend the Constitution. This requires a "Super majority" which is very difficult to obtain. Thus, when the Supreme Court somehow finds a right to abortion within the Constitution and judicially settles a hard fought policy debate, its the end of the matter. Its impossible to amend the constitution unless there is widespread consenus, and of course, on the tough issues, there will never be.

Thus, there is no recourse except to try and pack the court with Judges that agree with you (rather than elect congressmen that agree with you). The ultimate result is that the power of the President is vastly increased (the most important thing Bush will do during his presidency, believe it or not, is appoint supreme court judges), and a dangerous precedent is set whereby contentious policy debates are settled by the unelected judges rather than democratically elected legislators.

My feeling has been that the best way to fix the Constitutional system is to make it slightly easier to amend the constitution, and to start being more aggresive in the use of that power. A short term fix is to elect presidents who will appoint 'originalist' judges, like Scalia.


Corth
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Postby Birile » Tue Jul 05, 2005 3:14 pm

While I disagree with some of Corth's views in his last post (appointing originalists, an easier amendment process) he gives a very good lesson in the process and what was probably the original intent of the framers of the Constitution. And he's not exaggerating when he tells you that Bush's most important action in the next few years will be who he appoints to the Supreme Court. Take a look at some of the people sitting on the Court now. Several were appointed decades ago. Decades. And the "youngest" member of the court was appointed 10 or 11 years ago. While a judge is supposed to be impartial, we all know that judges are still human and still prone to their own political, religious, etc. beliefs and oftentimes those personal views play a role in how law (including the Constitution) is interpreted. My biggest respect goes to the justices on the Supreme Court who are better able to put their personal views aside and be closer to the impartial perfection that the Supreme Court needs (Sanda Day O'Connor was one of these, IMHO). They're still not perfect, but they're close. And it's this sort of justice that I would like to see succeed Justice O'Connor and any other Justice who leaves the Court in the future.

With all of the imperfections in our governmental system (no matter what side of the fence you're on), it's also important to note that ours is not the only imperfect one in the world and yet the world still turns and a lot of good is still done worldwide.
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Postby Raiwen » Wed Jul 06, 2005 2:53 pm

I understand what you are getting at with some laws protect freedom when on the surface they may appear to squash it.

However, that could be said in reverse as well. Some laws squash freedom when on the surface they may appear to protect it.

It's not the written law that's important. It's the motivation behind the laws as well as the interpretation of them.

The new law about the national ID card seems to be reasonable. However, I don't think it is. There were no provisions in that law to curtail the use of the ID amoung private companies. This means a bar/club could ask you to swipe your national ID card before you enter. What do they do with this information? Right now, anything they want. They could even sell it to 3rd parties. Your finger prints and/or other biometric data MAY be stored on this national ID card. So, does the national ID card make it harder for terrorists to move about the country? Hardly.

That is what I mean about the motivation behind the law. The motivation was to prevent terrorists from moving about our country unchecked, to make it easier for states to share information on warrants and wanted felons. The problem is, it's exactly this type of motivation that will eventually strip us of the freedom we're fighting for over in the middle east.

teflor the ranger wrote:In truth in a free society where due process is a protected right, there is little reason to fear law enforcement. Especially in a country of lawyers and the civil lawsuit.


Homeland Security is making it so that due process is not a protected right for terrorists. Now, what prevents a government agency from labeling you as a terrorist and stripping away your rights to.. anything?
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Postby kiryan » Wed Jul 06, 2005 7:00 pm

Personally I feel that the Republicans are setting themselves up for a fall.

Bush will appoint a moderate to conservative judge and get it approved with a lot of rhetori. However another judge will retire (or die) and Bush will again appoint a conservative, but the Democrats will filibuster. Bush will call for his simple up or down vote and Republicans will try to change the rules. The 7 republicans who signed on to avert the previous filibuster debate will either break their previous agreement or be ostracized from their party and trigger a lot of ugly infighting. This situation has the potential to weaken the Republican party significantly. I think Bush's court appointments over the next couple years will go through but will cost the conservative people a lot of power in the next decade.
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Postby teflor the ranger » Thu Jul 07, 2005 4:48 am

Funny how no one has really considered that a Supreme Court Justice KNOWS who is going to select their replacement.
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Postby Birile » Thu Jul 07, 2005 4:56 pm

teflor the ranger wrote:Funny how no one has really considered that a Supreme Court Justice KNOWS who is going to select their replacement.


You're assuming it hasn't been considered just because it hasn't been stated. :roll: It's a rather obvious fact.
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Postby Birile » Thu Jul 07, 2005 5:06 pm

kiryan wrote:Personally I feel that the Republicans are setting themselves up for a fall.

Bush will appoint a moderate to conservative judge and get it approved with a lot of rhetori. However another judge will retire (or die) and Bush will again appoint a conservative, but the Democrats will filibuster. Bush will call for his simple up or down vote and Republicans will try to change the rules. The 7 republicans who signed on to avert the previous filibuster debate will either break their previous agreement or be ostracized from their party and trigger a lot of ugly infighting. This situation has the potential to weaken the Republican party significantly. I think Bush's court appointments over the next couple years will go through but will cost the conservative people a lot of power in the next decade.


An interesting theory, but given the way of American politics, it's difficult to say whether it will come to pass or not. I will add, however, that even if this injures the Republican party in the near future, whoever is appointed to the Court could have a lasting effect on American law for decades to come. That's potentially worth the bruising Republicans would suffer temporarily. I used to want to be President of the U.S. until my first law courses in undergrad. Then I realized I wanted to follow in Taft's footsteps. The Supreme Court is where it's at.

My own guess is Bush's first appointment will be someone who is slightly more conservative than O'Connor and that will pave the way for him to have an easier time of appointing a more hardline conservative once Rehnquist's seat is empty. This will make the Court basically a wash in terms of becoming more conservative or more liberal--it will basically stay the same. If it becomes necessary to fill a void left by Stephens or Ginsburg then whoever Bush appoints will shift the dynamic of the Court rather dramatically.

But this is only a theory.
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Postby Corth » Thu Jul 07, 2005 5:40 pm

I'm not sure who will get bruised more in a nasty confirmation fight. I would agree with Birile that the outcome is more important than temporary political setbacks. My prediction is that Bush, who has been trying to build inroads with hispanics, will nominate Alberto Gonzales, a longtime friend, and the current AG. Interestingly, many conservatives are against that choice as Gonzales is thought to be a moderate conservative. If it happens, I would absolutely love to then see Rudy Guiliani take Gonzales' place as AG.

I think if Rhenquist retires, you will likely see Scalia nominated for Chief Justice, and a woman nominated to replace Scalia's seat.. possibly a very conservative one, like Janice Rogers Brown.

Its a good bet that any Supreme Court nominee will be younger than 60.

If you think this nomination is controversial, imagine the uproar if one of the liberal justices retired or died. Wow.

*spank* goes to Bush Sr. for Souter, Reagan for Anthony Kennedy, and Gerald Ford for Stevens. Here's hoping that Bush Jr. doesn't screw up to that extent. :)

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Postby Birile » Fri Jul 08, 2005 2:17 pm

Corth wrote:If you think this nomination is controversial, imagine the uproar if one of the liberal justices retired or died. Wow.


No doubt. There's no telling what sort of war would ensue. I'm just praying Stephens has a good team of doctors.

Corth wrote:*spank* goes to Bush Sr. for Souter, Reagan for Anthony Kennedy, and Gerald Ford for Stevens. Here's hoping that Bush Jr. doesn't screw up to that extent. :)

Corth


I don't know whether to comfort you or chuckle. :( 8) :twisted:
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Postby teflor the ranger » Fri Jul 08, 2005 11:26 pm

Birile wrote:
teflor the ranger wrote:Funny how no one has really considered that a Supreme Court Justice KNOWS who is going to select their replacement.


You're assuming it hasn't been considered just because it hasn't been stated. :roll: It's a rather obvious fact.


Yes, but the obvious fact that it was O'Conner's choice. The coming battle will be fought over Bush's selection, and yet it was a Supreme Court Justice that made the decision.

Just who are you liberals fighting anyway?
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Postby rylan » Sat Jul 09, 2005 12:55 am

I don't think Bush has the political fortitude nor political capital to get a conservative/constructionist appointed to the supreme court.
My guess is that he will nominate some wet 'moderate' to try to appease some of the democrats.
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Postby kiryan » Sat Jul 09, 2005 1:15 am

Birile and Corth,

I can see the benefit in having the power to make law and strike down legislated law, and I believe it is very very powerful.

however, what republicans would lose in a bitter infighting over supreme court nominees and filibusters would be control over federal money. Bush has steadfastedly supported abstinence and creationism education while attempting to reduce spending on programs like planned parenthood and creating restrictions on use of federal funds in non-abstience programs and additional tests on "darwin" science. Losing the ability to push conservative viewpoints in the public school system is a big loss in the long term. I would not want to sacrifice years of dominance in the senate/house for a conservative court. I would prefer to push out conservative laws in the senate/house.
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Postby Corth » Wed Jul 20, 2005 2:30 am

Every once in a while GWB surprises me... in a good way. Everything about Roberts is perfect. A member of the Federalist Society. An originalist judge easily confirmed by the Senate to the Circuit Court just a few years ago. No controversial decisions to speak of. And young.. really young. He'll be around for 30 years if we're lucky.

:)
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Postby Kifle » Wed Jul 20, 2005 2:40 am

At least it wasn't Gonzales?
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Postby Ragorn » Wed Jul 20, 2005 2:54 am

Sometimes it's tough for me to tell when Corth is being sarcastic.

- Nomination to the DC Circuit Court lapsed in 2000, as his views were regarded "too extreme."

- Wrote an amicus brief arguing that doctors in federally funded institutes should be prohibited from discussion (not performing, merely discussing) abortion with patients. The brief went on to roundly declare Roe v. Wade wrongly decided.

- In private practice, supports business expansion as opposed to environmental issues. Supported strip mining in WV in a suit where citizens were suing for damages due to "mountaintop removal." Three Republican judges decided that no damages were due, and that strip mine and explosive mining were legal.

- Supports the insertion of religious practice into the graduation ceremony of public high schools. Odd that federally funded doctors can't talk about abortion, but state funded schools can force jesus on graduates.

I look forward to another string of Souterlike outrage and alarm at the hands of Mr. Roberts. Pro-life, pro-jesus, pro-business. Exactly what our country needs at a time of record gas prices, eminent domain, and free money for Halliburton by the dump truck load.
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Postby Kifle » Wed Jul 20, 2005 2:57 am

Corth wrote:Essentially, the Constitution is supposed to be a limit on Federal power. The Constitution was framed soon after the Revolutionary war and is, to an extent, a reaction against British abuses. The framers believed (and I agree) that government will find ways to abuse its power unless limited in some manner. Thus the Constitution basically says that the Federal Government cannot do ANYTHING, except for several things that are listed in the document. Everything else is relegated to the State governments. To the extent that the Constitution is supposed to limit the power of the Federal Government, it makes sense that the Executive and Legislative branches be bound by the Court's interpretation of it. Otherwise it would be very easy to get around its constraints.

Corth


Not to just start an argument, but I was reading through past posts to see if anybody actually guessed right on the nomination. Anyway...

It was to my understanding that the Constitution was drafted to give the federal government more power rather than less. The Articals of Confederation was our first constitution, and, after incidents like Shay's Rebellion, people saw that we didn't really get it right. As far as what the constitution does or was intended to do is up to interpretation. Some see it as a band-aid fix to the problems of the time. The constitution was made intentionally vague because nobody could agree on how much power to give to the state and how much to give to the federal governments. This prespective is backed by the constitutions allowence of amendments.

Also, the executive branch is only bound by the court's interpretation so much. With the president's power of executive order, the only check he has is with the appellate court...and this has been shown to be a weak check since a lot of crazy order's have slipped past without much of a fight.

Unless I'm wrong, which, if I am, I would like to be corrected. I'm sure you know more about this than I do.
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Postby Mitharx » Wed Jul 20, 2005 2:57 am

I was about to say what Ragorn said, except with different examples.

But whatever...
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Postby Kifle » Wed Jul 20, 2005 3:24 am

Just repeat after me, guys. It'll make you feel better.

"At least it wasn't Gonzales."
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Postby Corth » Wed Jul 20, 2005 3:31 am

Kifle:

The Constitution was written explicitly to limit the power of the Federal Government. This is done by essentially saying the Federal government is not allowed to do anything but the following. This original intent of the Constitution has been severely degraded to the point that it was a huge surprise a few years back when the Supreme Court said that there was something Congress could NOT do under its commerce clause power.

As for Gonzales.. he would have been a better pick for you. Much less conservative.

Ragorn:

In regard to the amicus brief that Roberts wrote concerning abortion.. he was doing so in the capacity of an employee of the Justice Department. He was not setting policy. He was told to write a brief in favor of the following argument. I have found myself on many occasions advocating positions I do not agree with, and making arguments that I do not believe. That is my job. You are not mentioning the fact that Judge Roberts, at his 2003 confirmation, which btw sailed through the senate, said that he considered Roe to be settled law, and that precedent, even bad precedent (which it is.. and I'm personally pro choice), is important.

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Postby Ragorn » Wed Jul 20, 2005 11:56 am

There is a fundamental difference in qualification for a circuit court judge and a Supreme Court Justice. For a circuit court judge, the respect for precedent is paramount, because that is how our legal system works. Activist judges notwithstanding, I would say a strong respect for precedent is very much a prerequisite for filling such a position.

At the SC level, however, that changes. Precedent is important, but any case that reaches the SCOTUSA has already had its precedent cases (if any) founded and argued, and the case is generally one which seeks to either set or reverse precedent. Supreme Court cases are never as simple as referring to law journals to find out what someone else said. Supreme Court cases call forth the opinions and predjudices of the Justices, so I don't find it particularly valuable or comforting that Judge Roberts has been willing to defer to Roe v. Wade in the past. Now, it is his fundamental opinion on the underlying issue that matters, not his attitude toward the law.
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Postby rylan » Wed Jul 20, 2005 12:18 pm

I'm amazed. I figured Bush would pick some weenie, but this guy makes it difficult for people to oppose him since he hasn't really written any opinions on the 'major' issues. I'm sure the Fat Teddys and Weezlie Kerrys will be out in force against him, but they would no matter who the pick was.
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Postby Birile » Wed Jul 20, 2005 2:28 pm

As Corth said, I wish it had been Gonzales. He would have been much more likely to stay middle of the road.

And Roberts is 50. As Corth said, he'll be on the Court forever.

RE: Ragorn's mention of the attempt to put him on the DC Circuit in 2000, that's irrelevant. People will only remember that he was unanimously approved in 2003.

He'll get a very easy romp through the approval process.

As Corth said, just because someone writes briefs stating opinions just because it's their job to do so doesn't mean they BELIEVE those opinions. If that were the case it would be very difficult to find a lawyer to represent you for anything. In fact, if a lawyer doesn't represent his/her client to the best of his abilities, that lawyer is subject to repercussions. Don't be so naive. :)

I would be very surprised if Roberts doesn't get confirmed. It was a very wise choice for the Conservative camp.

Again--as a liberal, I wish it had been Gonzales. He had Kennedy potential. :lol:
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Postby Birile » Wed Jul 20, 2005 4:32 pm

Corth wrote:The Constitution was written explicitly to limit the power of the Federal Government. This is done by essentially saying the Federal government is not allowed to do anything but the following. This original intent of the Constitution has been severely degraded to the point that it was a huge surprise a few years back when the Supreme Court said that there was something Congress could NOT do under its commerce clause power.


I meant to comment on this earlier but I was in a rush, so here goes:

The idea that the authors of the Constitution meant for the words written to be read as an explicit limit to the power of the Federal government and the "original intent" of the document was supposed to rule supreme in our country even 200 years after it was written is, at best, debateable and highly subject to scrutiny. To think that such intelligent and patriotic men were incapable of foreseeing that this country would change in leaps and bounds and much of the "original intent" would not apply to the U.S. of Today means you aren't giving them the benefit of the doubt. What is unfortunate is that our forefathers thought we would have the same insight as they did and the same common sense and solidarity and would be able to use the system of Amendments as a way of changing the document to reflect the views expressed in our day and age. They could not have foreseen everything that has happened in the last two centuries and they could not have foreseen the types of politicians who have filled their shoes since the late 1700s. Originalists are stuck in the past and many of them (not all) use the idea of original intent solely as a tool to further their own agendas.

In the end, no matter what is written, no matter what is documented concerning the thought process of the Fathers of the Constitution, no one truly knows what their complete intent was or what they would have to say about the very concept of "original intent" if they were presented with the very notion of our country as it is today.
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Postby Mitharx » Wed Jul 20, 2005 9:18 pm

Now now Birile, I believe it's pretty clear that the founding fathers considered themselves the supreme rulers of both time and space. Do not question them or they will come from beyond the grave to legislate against you.
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Postby Corth » Wed Jul 20, 2005 9:43 pm

Birile,

If you don't like the Constitution, one remedy is to change it through the Amendment process that it provides for. Historically, when the Constitution proved to be deficient in some manner or another, that is exactly what happened. What's nice about the Amendment process is that it is democratic. If there is a consensus on the subject, you will be able to make the Amendment. If not, then you won't.

Another way to change the Constitution is to judicially re-interpret it. That way, if you don't like something in the Constitution, instead of convincing the public that your position is correct, you just need to convince a few Judges. For instance, Roe v. Wade, which reinterprets the Constitution to imply a Constitutional right to obtain an abortion. It really doesn't matter that the Constitution does not explicitly state this right or anything close to it. What matters is that the unelected judges sitting on the court in the early 1970's were in favor of abortion. That was a quick way to change the Constitution.

So you don't like certain aspects of the Constitution. You feel they are outdated. For instance, you would like to see the Federal Government have more power than it was originally intended to have in relation to the States. You believe that the idea of Federalism, that power is divided between the Federal Government and the States, is an outdated concept. Rather than try to convince people that your position is correct, you find it a lot easier to try and have sympathetic Judges appointed. My response is that you are undermining democracy. An arrogant elite with the power to enforce their position over the populace as a whole (think monarchy and dictatorship) is exactly what the framers had in mind when drafting the Constitution.
Last edited by Corth on Wed Jul 20, 2005 9:49 pm, edited 1 time in total.
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Postby Mitharx » Wed Jul 20, 2005 9:45 pm

Corth, some legal minds that are probably greater than yours believed the constitution did have that right within it. The constitution, if nothing else, is relatively vague. I hope that the founders did that on purpose so we would have this type of flexible rule, but I dunno.

So to say that the constitution did not provide for such a right is a matter of opinion, not fact.
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Postby Corth » Wed Jul 20, 2005 10:06 pm

Mitharx:

I'm not saying that the elite who are trying to undermine democracy by imputing rights into the Constitution are not smarter than me. Many are. I'm saying that they are elites who are undermining democracy.

The thing is, it cuts both ways. The basis of Roe is 'substantive due process.' The jist of the idea is that the Due Process clause of the Constitution, which generally is defined as giving people certain procedural rights (the right to a judicial hearing under various circumstances), is broadened to create substantive rights that are not procedural in nature. Roe v. Wade is a great example of substantive due process in action. The Court implied a right to privacy from the due process clause, and then said that for government to deny abortions to individuals is a violation of that individual's privacy rights. Want to know another famous example of substantive due process? The Dred Scott case.. which said, among other things, that landowners in the Missouri terroitory had a substantive due process right to keep slaves, and thus the Missouri Compromise was unconstitutional. That case, more than anything else, was the reason for the Civil War.
Having said all that, the situation has been handled, so this thread is pretty much at an end. -Kossuth



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