Ugh.

Julian Sanchez | November 1, 2005

The Liberty Belles spot Andrew Napolitano's assessment of Sam Alito in The Daily Princetonian:

Napolitano also said he wasn't surprised that Bush chose Alito.

"Sam Alito is just what George Bush is looking for: a big government conservative who will almost always side with the government against the individual, and the federal government against the state," Napolitano said.

Comments

|11.1.05 @ 8:37AM|#

On the subject of government vs. individual, I have only one question for Alito:

Does the President have the authority to indefinitely detain a US citizen, captured on US soil, without trial or charges?

That, IMHO, is the most important issue before our country right now.

|11.1.05 @ 8:50AM|#

thoreau,

Going by the Ginsburg standard, I don't think he can answer that question; if he did, he would open himself up to being asked specifically about abortion.

MP|11.1.05 @ 8:55AM|#

he would open himself up to being asked specifically about abortion.

Oh, the horror!

|11.1.05 @ 8:55AM|#

Also from Napolitano, also from the article:

"I think Sam will be confirmed," Napolitano said. "He will come across as a less charming, less warm Roberts ..."

That's the saddest sentence I've read about Alito so far. (And Napolitano _seems_ to like the guy...)

Anon

|11.1.05 @ 8:57AM|#

"Sam Alito is just what George Bush is looking for: a big government conservative who will almost always side with the government against the individual, and the federal government against the state," Napolitano said.

Query: Why didn't Bush pick Alito first rather than Meiers?

Rich Ard|11.1.05 @ 9:10AM|#

Answer: Because his handlers were busy trying not to get indicted.

|11.1.05 @ 9:11AM|#

Answer 2: Whispering in Jim Dobson's ear didn't work out quite like Rove wanted it to. (For details, see Answer 1, Rich Ard, above.)

|11.1.05 @ 9:12AM|#

Akira, either Miers was the sacrificial lamb, to sate the wolves, or Bush was ducking a fight, tired from Katrina, thinking a middle of the road female would sate the diversity wolves.

|11.1.05 @ 9:15AM|#

"Why didn't Bush pick Alito first rather than Meiers?"

My theory is that he thought appointing a Bushie was a more certain way to assure conservatives that she would vote 'loyally'. I don't think he trusts experienced jurists to overturn anything much in the way of accepted law. I think he is correct in that assessment, too.

Alito will not vote to overturn Roe. The right case will never materialize in front of the court, and if it does, Alito will enthusiastically write a decision so narrow in scope that there are no broader implications beyond the case at hand.

At the end of the day, this is much ado about not much.

greg wirth|11.1.05 @ 9:54AM|#

Nevermind detaining people without charges, we are engaging in torture of detainees. John Roberts, Sam Alito and Harriet Miers all believe in the absolute power of the executive.

|11.1.05 @ 10:04AM|#

Sorry, but putting a guy on the SCOTUS who has decided that a woman has to tell her husband if she wants to get an abortion is hardly much ado about not much. Either there is a right to privacy or there isn't, and from his paper trail (the PA case in particular) it's obvious he doen't think there is. Are the Dems going to be the whiny little bitches they usually are? Yes, but that doesn't mean that confirming Alito wouldn't be a huge punch in the gut to liberty loving folks everywhere. And he should be forced to answer questions like Thoreau's.

|11.1.05 @ 10:10AM|#

Suprise. There is no right to privacy. They just made that up.

M1EK|11.1.05 @ 10:16AM|#

"Suprise. There is no right to privacy. They just made that up."

Then the buttheads who keep arguing for state power need to admit that they don't believe in a right to privacy at all, so we can then have a debate about an amendment to the Constitution.

Because people, overwhelmingly, like them their imagined right to privacy.

|11.1.05 @ 10:31AM|#

DavePotts:

You could put David Duke on the USSC and it wouldn't matter. They won't address tough issues in a way that has broad implications. They will defer to the federal legislature on every issue of substance, and they will strike down state laws narrowly and according to precedent.

To get the kind of court you are worried about, you have to go all the way to an FDR scheme.

MP|11.1.05 @ 10:33AM|#

Surprise! The Ninth amendment allows SCOTUS to "make up" all sorts of things.

|11.1.05 @ 10:33AM|#

BTW, I'm pretty sure I heard on NPR yesterday that Alito has specifically affirmed Griswold and a right to privacy as correctly decided.

nmg|11.1.05 @ 10:37AM|#

"Suprise. There is no right to privacy. They just made that up."

There's the little matter of the 9th Amendment.

nmg

Warren|11.1.05 @ 10:44AM|#

Well that, and the 4th amendment.

I for one am shocked, SHCOCKED, that any constitutional scholar would side with the federal government over the individual.

Danm, not even noon and I'm drinking already.

|11.1.05 @ 10:45AM|#

"...putting a guy on the SCOTUS who has decided that a woman has to tell her husband if she wants to get an abortion is hardly much ado about not much. Either there is a right to privacy or there isn't..."

perhaps he views marriage as a partnership where there is not two individuals but one.

|11.1.05 @ 10:48AM|#

The 9th is supposedly referring to common law rights at the time of ratification. Not just anything the judges decide is a right.

that's the theory, anyway.

|11.1.05 @ 10:48AM|#

nmg-

Exactly. Reasonable people may differ over the precise meaning of the 9th, but one thing is for certain: The mere fact that a right is not explicitly listed doesn't mean they can abridge it. A lot of so-called "originalists" seem to want a society with as few explicit rights as possible.

|11.1.05 @ 10:49AM|#

"perhaps he views marriage as a partnership where there is not two individuals but one."

Then he is one hell of an activist judge, because there is absolutely no mention in the constitution of married couples reliquishing their rights as individuals.

|11.1.05 @ 10:59AM|#

What scares me most of all about Alito and modern "Bush conservatives" has already been brushed upon here: the idea that the government can do pretty much anything it wants unless the Constitution specifically forbids it. I've seen a lot of that on these very boards: "Where does the Constitution say we can't invade foreign nations and torture their citizens?" And now we'll get more of the same: "The Constitution doesn't expressly forbid government to regulate women's sexuality, therefore government is allowed to do so."

I wish we'd get a conservative with the opposite view: the government is only allowed to do what the Constitution specifically allows. But that, of course, will never happen.

|11.1.05 @ 10:59AM|#

J. Ligon has found the key, IMO:

Will Alito err on the Michael McConnell side, i.e., does he respect stare decisis so much that he will defer on principal to previously wacky (from an originalist prespective) decisions like Roe or Kelo? Or, will he become an "activist" and "restore" previous decisions to a Scalia-esque understanding of originalism?

It seems to me that there are 2 very different meanings of the term "judicial conservative."

|11.1.05 @ 11:01AM|#

"...there is absolutely no mention in the constitution of married couples reliquishing their rights as individuals..."

I thought the issue was notification, not whether or not the wife is allowed to get an abortion. If the husbands consent is required then that would be an infringement on the current view of a women's individual rights. Notification does not conflict with those rights.

|11.1.05 @ 11:06AM|#

Ricky,

Does that mean the following should also require a spousal notification form before they can happen:

-Spouse accepts a job that requires the family to move to a different city/state/country
-Buying a handgun if the spouse does not want to have one in the house
-Participating in a demolition derby, skydiving, bungee jumping, etc.
-Putting every penny from a joint account into a risky investment

Or does only abortion fall into this category?

|11.1.05 @ 11:14AM|#

The reason he picked Meiers is because they wanted a woman, and no woman that they asked, aside from Meiers, would accept.

|11.1.05 @ 11:15AM|#

SPD,
I suppose if a legislature would like to make laws like those then ok.

I never said I thought pre-abortion notification should be required.(Although, i think it would be polite.)

Maybe I don't understand the issue but I thought there was this notification law and somebody wanted to overturn it on the courts but the law isn't unconstitutional.

|11.1.05 @ 11:21AM|#

Ricky,

It's a tricky situation, to be sure. Certainly it would be considerate of a woman considering an abortion to discuss it with her boyfriend/husband, and I think that most women would not have a problem with that. It's one of those things that relationships are supposed to be all about.

It's the "permission slip" part that I have a problem with. It makes it sound like she wants to go on a grade-school field trip. Adults should be able to make their own decisions and live with the consequences, should they not?

|11.1.05 @ 11:21AM|#

thoreau,

Well, majoritarianism is a common enough ideal amongst many conservative jurists. It certainly undergirds the judicial philosophy of Justice Scalia.

|11.1.05 @ 11:27AM|#

Is there any legal distinction made between prescriptive and prohibitive laws? Most of the laws requiring how we interact with each other are prohibitive laws--don't kill people, don't beat them up, don't steal their stuff, et cetera. But THIS law doesn't specify what a married woman can't do to others, but what she must do. And that doesn't sit well with me at all.

|11.1.05 @ 11:34AM|#

I wish we'd get a conservative with the opposite view: the government is only allowed to do what the Constitution specifically allows.

Instead, we'll get more Scalia-type "the original intent of the framers matches my worldview, letter for letter." so-called originalists.

|11.1.05 @ 11:42AM|#

SPD,
In general it always seems like we have too many laws. Laws regarding issues that it doesn't look like government should be a part of. If laws are made because a society wants its members to behave in a certain way then notification type laws fit right in. Very controlling, but we jump through hoops to do lots of things.

Jennifer,
"don't kill people" is something "she must do"

nmg|11.1.05 @ 11:45AM|#

Ricky, that is what we call sophistry.

nmg

|11.1.05 @ 11:46AM|#

big government conservative

For those of us keeping score at home, can someone please list all the actual small government conservatives. Some brevity is in order.

The list of the biggies is growing long, and us older folk have a touch of arthritis. All this writing is killing me.

|11.1.05 @ 11:59AM|#

Jennifer, "don't kill people" is something "she must do"

Two problems with this statement: one, there is no legal justification for the assumption 'a married (as opposed to unmarried) woman who gets an early-term abortion is killing a person', and two, the law is NOT saying she can't do something, it's saying she must do A before being allowed to do B, even though other women can do B without first doing A, based upon their marital status.

|11.1.05 @ 12:01PM|#

It's the "permission slip" part that I have a problem with. It makes it sound like she wants to go on a grade-school field trip. Adults should be able to make their own decisions and live with the consequences, should they not?

Sure, except when the consequence is the death of a) a human being, and b) her husband's child.

If you think the above makes no difference, that's fine, but don't act as if it's a settled issue.

It was said better on instapundit yesterday:
I'm not sure about Pennsylvania, but in many states her spouse -- even if he's not the father of the child -- would still be on the hook for child support. Likewise, if he didn't want children, but she disagreed, lied to him about birth control, and got pregnant. And he certainly couldn't force her to have an abortion if she did so, even if his desire not to have children was powerful, and explicitly expressed at the outset. (The usual response -- "he made his choice when he had sex without a condom" -- never comes up in discussions of women and abortion.)

So where's the husband's procreational autonomy? Did he give it up by getting married? And, if he did, is it unthinkable that when they get married women might give some of their autonomy up, too?

The problem here is that you can say "my body, my choice" -- but when you say, "my body, my choice but our responsibility," well, it loses some of its punch.

|11.1.05 @ 12:03PM|#

Isn't the whole idea of marriage to confer certain resposibilities on people entering into the contract? This is not to say that the above should be on of them, but the idea is hardly "out there".

|11.1.05 @ 12:06PM|#

wtf,

Section a) is still being debated and b) is not always the case. Do you think that once a woman becomes pregnant she loses her right to become anything but an incubator?

Get rid of the "but our responsibility" part and that's what I agree with.

MP|11.1.05 @ 12:20PM|#

SPD,

If women want the state to be empowered to force men to pay child support, then they have opened the door to laws such as this abortion notification one.

|11.1.05 @ 12:25PM|#

My comment was a reaction to what seemed like a willfully dense statement on your part.

Do you think that once a woman becomes pregnant she loses her right to become anything but an incubator?

What you "my body, my choice" types never seem to get is that there are other people's rights tied up in the same situation. It's as if it is inconcievable that the husband (not even boyfriend, mind you) would want some say in the life or death of his child. Or that the child itself may have a value greater than some sort of tapeworm.

|11.1.05 @ 12:27PM|#

Again, we get into the problem that if a woman doesn't tell her husband that it is an unfair situation for him. As has been mentioned, if the woman has the child the father will certainly be legally responsible for the child, so it only seems fair that he be notified in the case of abortion. Well, that sucks, but it's really a decision between two individuals.

We can't always make things right through laws (and usually make things worse), and legally requiring notification is no different. In this case, it's simply best to leave government out of it and let the individuals choose as they may. Yes, some will get hurt unfairly, but we can't simply force everything to be exactly right.

|11.1.05 @ 12:27PM|#

MP,

They shouldn't be. If a man declares in a legally-binding situation that he does not want to adopt the responsibility of parenthood, he should not be liable to child support, nor should he ever be able to contest for custody or visitation rights.

If a woman decides she is not willing to carry a pregnancy to term, she should have the right to terminate the pregnancy, whether or not the father approves or gives explicit permission.

|11.1.05 @ 12:29PM|#

wtf,

So what would you propose if the woman has the abortion anyway? Jail time? Financial compensation? Defend your own willfully dense statements.

|11.1.05 @ 12:39PM|#

I don't know what the appropriate action is. That being a hard question does not invalidate my previous issues.

A woman creates a human being inside of herself through actions taken consciously and of her own volition. I don't see it as so insane to think this brings responsibility, not prerogative.

The same can be said of the father, of course. My point was that they are both in it together.

I don't know how to solve it. It's an extremely difficult problem. What bugs me is when people act as if it is a simple one.

|11.1.05 @ 12:40PM|#

We have the right to ignore the supreme court,
regardless of whether anyone bothered to write
that right on a piece of paper.

|11.1.05 @ 12:41PM|#

Again, we all agree that the wife should tell the husband, ie it's the proper thing to do. The only question is whether or not the government can legally force her to. Does notification amount to anything but a "good wife" law?

|11.1.05 @ 12:44PM|#

wtf,

The problem is whether or not one chooses to see this as an issue of positive rights or negative rights. Greater minds than mine have pondered this.

By the way, I apologize to you for the ad hominem response to your viewpoints as "willfully dense." It degrades the level of discourse and was merely reflexive on my part.

|11.1.05 @ 12:46PM|#

wtf,

So where's the husband's procreational autonomy?

In not sleeping with her.

|11.1.05 @ 1:03PM|#

Andy Napolitano is completely wrong, probably knows that he is wrong, about Judge Alito being in any sense a 'big govt conservative.' Judge Alito is a classic 'law of the case' jurist in the tradition of the second Justice Harlan, which means he will assert no sweeping OUTCOME BASED principles but read in detail the facts and pertinent legal rules for each case before him...no pre-existing bias for or against govt unless found in the course of that detailed review.

Judge Napolitano, who may be suffering an ego-envy problem this week, is someone I knew well as an undergrad, along with Judge (Justice) Alito. A shame because Andy is much smarter than that.

George Pieler, Princeton '73

|11.1.05 @ 1:05PM|#

There doesn't seem to be here much recognition of the fact that, because of a few facts of biology, this is a situation that is going to be inherently unfair to one of the two genders.

So perhaps the debate boils down to which form of unfairness the law should recognize: that the woman inherently suffers more from the consequences of pregnancy, or that the woman has inherently more control over the consequences of pregnancy?

|11.1.05 @ 1:12PM|#

"one, there is no legal justification for the assumption 'a married (as opposed to unmarried) woman who gets an early-term abortion is killing a person'"

nobody said there was

"she must do A before being allowed to do B, even though other women can do B without first doing A, based upon their marital status"

yes, the law says that the mother must inform the father before the abortion. If there is no way to contact the father then and the law does not make an allowance for that then maybe it violates her rights. I don't like the law but I don't see a difference if it is expanded to unmarried couples also. Unless the burden of notification is to high then it does not infringe on the mothers rights.

|11.1.05 @ 1:17PM|#

nmg,
whatever man. how was i misleading?

|11.1.05 @ 1:19PM|#

nobody said there was

To go back to the language of my first post, the point I was making was that this is basically a "prescriptive" law, yet you were arguing as though it were a "prohibitive" law.

But the more I think about it the more I think the problem is indeed that biology mandates this situation be unfair to somebody. But who--male or female? It's not even a question of how the law should balance the father's and mother's rights, but whose rights the law should make priority, the woman's or the man's?

You can make arguments that the woman is biologically destined to get the short end of the stick, or that she is biologically destined to be the one lucky enough to have the most control.

|11.1.05 @ 1:20PM|#

george pieler,

We're supposed to take your word on this? :)

...which means he will assert no sweeping OUTCOME BASED principles but read in detail the facts and pertinent legal rules for each case before him...

I hear this said about a lot of judges and it always sounds nice, but upon further inspection it doesn't seem to meet up with the reality of how humans think.

|11.1.05 @ 1:22PM|#

If the child is not recognized as a child then the father should not have much of a say in what the mother should or should not do. The father can always go find a woman that wants to be the mother of his child. Now if we are saying that there is a child and that the father should be consulted before abortion then we are talking about murder.

|11.1.05 @ 1:24PM|#

"I hear this said about a lot of judges and it always sounds nice, but upon further inspection it doesn't seem to meet up with the reality of how humans think."

Me either. And there even was a form of a study done on it - I forget how they set it up, but the results showed that Judges were highly result oriented in their reasoning. I'll have to search for it to provide the details.

|11.1.05 @ 1:30PM|#

I just don't see a difference in prescriptive or prohibitive laws. If you defend yourself it's ok to kill. If you notify it's ok to abort. (i'm not making an abortion=murder point.) I'm just saying that a must be satisfied for b.

MP|11.1.05 @ 1:30PM|#

Now if we are saying that there is a child and that the father should be consulted before abortion then we are talking about murder.

Referring to it as a child does not change the legal status of abortion to murder. If that's not the argument your making, then I'm unclear why you are choosing the use the word "murder" unless you are simply trying to stoke up a generic abortion debate.

|11.1.05 @ 1:33PM|#

maybe judges should answer to some sort of review process every so often

|11.1.05 @ 1:33PM|#

I'm really having a hard time with why this is limited only to married couples. Why does being married to the mother of your child give you the right to be notified, but not otherwise? Either the biological father of a fetus has the right to intervene in the process of abortion or he does not. This seems like a law that was written to soften the ground for more legal restrictions and not something that was written on principle alone. But then, aren't they all?

|11.1.05 @ 1:36PM|#

maybe judges should answer to some sort of review process every so often

Sort of like a process, say where the majority of people vote to see if this person gets to keep their job or not? I don't think we want our judges to become anymore political than they already are.

|11.1.05 @ 1:42PM|#

If the baby inside the mother is a child and not some fetus then abortion is killing the child. I guess the law says that it is a fetus so abortion is ok. It all depends on the status of the baby.

If it's just a fetus then why would the father have any say in it.

And if you think about pregnant woman murder where intent to keep the child means it's a double murder then does the father's intent to keep the child matter for abortion.

|11.1.05 @ 1:46PM|#

Would elections make judges more political? How has elections changed senators?

|11.1.05 @ 3:02PM|#

In case anyone is interested, though it seems not, the penalties in this case were restricted to the physician only, the wife is not criminalized at all. They also give the physician an 'out'.

(c) Penalty. --Any physician who violates the provisions of this section is guilty of "unprofessional conduct" and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L.1109, No.261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L.457, No.112), known as the Medical Practice Act of 1985, or their successor acts. Any physician who performs of induces an abortion without first obtaining the certification required by subsection (a) (4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.

|11.1.05 @ 3:02PM|#

"Right to privacy
I have said this once before, but I'll say it again.

How do you have a right to privacy to kill a baby, but not a right to privacy to not wear a seatbelt or a helmet, or not get a car without airbags?

I know some of the people on this site might be different, but most of the people that I know that are fervent abortion rights people are also safety nazis.

I mean I really don't care that much about the abortion debate except that I believe the people who tell me that it is bad law and that abortion should be state, not federal law.

I use a condom, and generally try not to have sex with women with whom I would not be willing to father a child to if I had to. (I'm still going to hell, I guess). So I really don't have a big stake in the abortion debate except that it grates me the seatbelt laws and other stuff and the hipocrisy of the "Right to Choose people.

M1EK|11.1.05 @ 3:16PM|#

"How do you have a right to privacy to kill a baby, but not a right to privacy to not wear a seatbelt or a helmet, or not get a car without airbags?"

Killing a baby isn't done on public highways.

I agree with the basic point, at least for adults, but still.

|11.1.05 @ 3:18PM|#

most of the people that I know that are fervent abortion rights people are also safety nazis

Not me. I support the right to choose vis a vis abortion, seat belts, drugs, smoking, tattoos and everything else that doesn't hurt another (unmistakable) person.

MP|11.1.05 @ 3:25PM|#

How do you have a right to privacy to kill a baby, but not a right to privacy to not wear a seatbelt or a helmet, or not get a car without airbags?

Because some people believe that the direct dependency of one life form to another as a result of a physiological interconnection gives the dominant life form an absolute right over the subordinate life form. What I find interesting is that in discussions I have with people who hold this belief, I can never get them to resolve the siamese twin connundrum (why is abortion not murder but shooting your siamese twin in the head is?).

MP|11.1.05 @ 3:27PM|#

oops...should have said "...why is third term abortion...". I do believe that viability is a factor in evaluating the status of a life form.

|11.1.05 @ 3:28PM|#

MP,

Siamese twins are seperated with a risk to one or the other twin (or both).

|11.1.05 @ 3:29PM|#

Sorry, grabbed the wrong section, but it is substantively identical:

(e) Penalty; civil action. --Any physician who violates the provisions of this section is guilty of "unprofessional conduct," and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L.1109, No.261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L.456, No.112), known as the Medical Practice Act of 1985, or their successor acts. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.

|11.1.05 @ 3:29PM|#

I figure you would opine that way Jen, that is why the disclaimer about people on this site, being different than the ones I meet day to day. But I also don't see you being as fervent about the abortion issue as the ones who insist government protect us from ourselves. But I haven't heard you talk a lot about abortion either.

BTW what is a mistakable person?

MP|11.1.05 @ 3:33PM|#

Siamese twins are seperated with a risk to one or the other twin (or both).

Depends on the nature of the birth defect. And the existence of risk doesn't change the hypothetical.

|11.1.05 @ 3:37PM|#

Well, Kwais, maybe "unmistakable" was the wrong term for me to use (okay, definitely the wrong term), but I was trying to distinguish between harming another person and getting an abortion, which some people say harms another human being and others say does not.

I think murder is wrong, but I don't think abortion is murder, so I have no problem with it. And I do have strong feelings about abortions rights but you're correct, I haven't spoken much about them. (But when I have I've managed to piss off a lot of people.)

|11.1.05 @ 3:39PM|#

MP,

Sure it does. Clearly we are willing to allow some conjoined twins to die if it might improve the lives of one or both of the twins. Its such rule utilitarianism which is at the heart of abortion as well (IMHO).

|11.1.05 @ 3:41PM|#

kwais,

The problem is that it may be infringed upon, and indeed is. Some time ago crimethink made the argument that were no post-viability bans on abortion in the U.S., when in fact, over 2/3rds of the states have such bans.

|11.1.05 @ 3:43PM|#

Jen,
hahaha,
I piss a lot of people off when I talk about abortion also. So I don't do it unless I am online or I am talking to a mostly apathetic crowd, that is humored when I say "I am not really that bothered by people killing babies, but I am bothered when the same baby killers want to force me to wear a seatbelt". I piss off people on both sides of the issue and there is yelling and emotionalism, and it is annoying.

|11.1.05 @ 3:47PM|#

Hakluyt, I don't understand your last post. What is the significance of crimethink's error?

BTW you had the best post ever on the libertarian view of government involvement in discrimination or prevention thereof, a couple of days ago. I had mixed feelings on the subject, and now they are a little less mixed.

MP|11.1.05 @ 3:54PM|#

Sure it does. Clearly we are willing to allow some conjoined twins to die if it might improve the lives of one or both of the twins. Its such rule utilitarianism which is at the heart of abortion as well (IMHO).

Are you talking medical or psychological improvement? Because if I shoot my conjoined twin because he's an asshole, that's psychological.

|11.1.05 @ 4:00PM|#

kwais,

The point is that right to an abortion is limited, it is not an "undeniable right." Its a circumscribed right.

MP,

You'd have to find out what the exact criteria for the risk of death associated with such actions are. The abortion right is as much an example of rule utilitarianism as the risk associated with offing one of the two conjoined twins are.

|11.1.05 @ 4:03PM|#

Why is there that undeniable right, that cannot ever be infringed upon, yet the DEA can crap all over a doctor that gives someone too much pain medication, or a why can the DEA crap all over someone that wants do deliver just the right amount of meth to an eager customer?

What you're basically saying here is "Since the DEA is allowed to infringe upon rights in ways we should find unacceptable, we should let other rights be eroded, too?" I think the whole War on Drugs is wrong, but the wrongness of the WOD shouldn't be used to justify other wrongs by the government.

|11.1.05 @ 4:03PM|#

kwais,

I guess you are referring to the discussion about Jim Crow, right? Where M1EK made one of his strategic retreats into vague ramblings about Western Europe? :)

|11.1.05 @ 4:06PM|#

Depending on the circumstances, shooting your Siamese twin could be suicide. But suicide is also against the law. So the shooter would spend whatever time remains to him in jail, I guess.

|11.1.05 @ 4:10PM|#

thoreau,

Unless they got to other suriving twin, they would die as well, given that they tend to share the same blood supply in the body, etc.

|11.1.05 @ 4:15PM|#

kwais,

BTW, this is the case that came to mind re: your hypothetical: http://www.jlaw.com/Commentary/cojoinedtwins.html

|11.1.05 @ 4:36PM|#

Hakluyt, do NOT take my word for it, but look at the overall panoroma of decisions and not just the ones which (based on results obtained if the Alito opinion prevailed) you find troubling. The fact that one can not find a 'predictable' pattern from Judge Alito's decisions is strong evidence of my observation, bolstered by my own knowledge that he, very early on, embraced the 'law of the case' as his own concept of how judges should decide.

Whether any judge always meets the ideals he or she prescribes for himself, is a separate question. Remember too that carefully balancing considerations of fact, legislative language, and constitutional precedent is in the long run MORE likely to enhance liberty because it ensures that sources of judicial-decisionmaking have to compete for attention: less risk of any one (e.g. Federal govt. under the Warren Court) dominating. The Court, even when acting in the name of protecting individual rights, often diminishes the rights of others in the process (a frequent problem in Establishment Clause cases).

GP

|11.1.05 @ 4:43PM|#

george pieler,

I remain with my default position (as I stated it yesterday).

|11.1.05 @ 6:00PM|#

Jen,
I am not saying that at all. I am just trying to point out the hipocrisy of some who think abortion is the ultimate right, yet are willing to accept the motherly state trampling on other real rights.

I don't really care about abortion one way or another. I mean really, I don't care. Except in ways that mean government has powers or behaviors that it shouldn't. But that is tangential.

|11.1.05 @ 6:41PM|#

Should "Ugh" in the headline have a period at the end of it? Most H&R headings don't. I find that this aberration is throwing off my sense of cosmic balance.

|11.1.05 @ 8:33PM|#

Why the hell couldn't baby bush pick a judge like Napolitano?

Maybe because Napolitano always interprets the situation like it really is!

|11.1.05 @ 10:03PM|#

Perhaps, a woman aborting her husband's child without his knowledge and consent could be considered a legitimate ground for divorce? That may be a good reason why a married woman would have to notify her husband rather than a mere boyfriend. I'm not sure why there would be an expectation for a married person to have a privacy right from their spouse on this kind of issue.

|11.2.05 @ 11:28PM|#

thoreau writes: "Does the President have the authority to indefinitely detain a US citizen, captured on US soil, without trial or charges?"

I'd phrase it like this: "Judge Alito, would you think the President within his rights if he shoved a hot poker up your ass on the flimsiest pretense?"