I Hope He's As Bad As They Say

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I have not carefully examined John Roberts' record, but a good rule of thumb in situations like this is to look at what a man's opponents are saying about him. The two main complaints about Roberts–that he may think Roe v. Wade was wrongly decided and that he may be sympathetic to those old-fashioned "judges and scholars who believe Congress is limited in the laws it may enact, leaving some issues to the states," as The New York Times puts it–sound like good points to me. Roe v. Wade, after all, was wrongly decided, at least if you think that it's a bad idea to trample on federalism and pull constitutional rights out of thin air. And it would be nice to have a new justice on the Supreme Court who hews to the quaint view that the Constitution imposes limits on congressional power. I hope Roberts is guilty as charged.

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  1. In the long run, I believe, Roe v. Wade is doomed. Its textual basis is too thin, and absent a serious move to put it on firmer logical and textual underpinnings, we’re rapidly running out of people who can recite its reasoning without laughing. The relevant question is what will replace it, and it is on that basis that nominees should be judged.

    The absence of Roe from the legal landscape doesn’t demand a particular alternative. With the federal “Partial Birth Abortion” legislation, we know what the Republicans want: Abortion policy decided at the federal level. The alternative, of course, is for abortion to become a state matter (this is the view nominally supported by President Bush, but in reality he signed the federal Partial Birth Abortion measure, so we know that that’s bullshit).

    From this perspective, Roberts looks good. His Commerce Clause views and what little written evidence we have suggest that he will see the states rather than the federal government as the appropriate battleground in post-Roe America.

    The relevant abortion fight is whether the inevitable loss of Roe means the defederalization of abortion or simply the handing off of abortion politics to congress. Roberts, it seems to me, is on the right side of that question.

  2. The New York Times is just wonderful:
    “..resurrect ancient, and discredited, states’ rights theories”.

    We can only hope…

  3. “pull constitutional rights out of thin air.”

    Good to know we can mark you down as anti-Griswold. Was the right to privacy a penumbra or an emanation, Jacob? Anyway, give the dope to the nice officer now, would you?

  4. roe v. wade probably was wrongly decided. but if so, so was griswold v. connecticut. and if that’s so, what’s left to protect us against majoritarian tyranny? it’s not enough to say “vote out the bums who put you in jail if you don’t like ’em.” i’d like to see someone come up with a libertarian-friendly legal rationale for overturning bad laws, and one that also passes constitutional muster. any ideas?

  5. Grant Gould,

    You really don’t have any information to allow you to draw that conclusion. Bush picked this guy in part because he has such a thin jurisprudential resume.

  6. My rough guess is that Roberts is a sacrificial lamb. The Democrats are so desperate for relevancy that they’ll tear to shreds anyone who is put up. So a possible strategy is to give them one or two at the alter.

    If this is true, then Roberts is DOA and the next nominee will be a Hispanic and/or female of considerably more conservative credentials.

  7. Jacob Sullum,

    As Scalia likes to say, we have far more rights than the Constitution actually grants – hinting that a far less free society is acceptable to him as long as the sort of vulgar majoritarianism he perfers remains in situ. Why libertarians fool themselves into believing that conservative justices are in favor of real limited government is beyond me.

  8. He sounds OK, but I’ve learned to expect surprises.

    What concerns me is his very young age. I never thought I would say this, but I prefer very old nominees. In the absence of a set term for justices, we must rely on the aging process to keep them from staying around too long. I keep hearing news reports that he could be around for 30 or 40 years, but I’m not that optimistic. The fact is, if he’s in reasonably good health now, he could easily make it past 100.

    If Roberts turns out to be a sensible, decent human being (that is, if he agrees with me on everything…j/k), having him around for a while could be great, but what if he gets Souterized and we’re stuck with him for 40, 50, 60, possibly 70 years? That may seem a stretch now, but just imagine the state of medical science in 50 years!

  9. And it would be nice to have a new justice on the Supreme Court who hews to the quaint view that the Constitution imposes limits on congressional power.

    That’s certainly a plus. It will be interesting to hear what he thinks about limits on executive power. For instance, does the President have the unqualified power to label a person an enemy combatant and send him to a prison camp…um, I mean, frat house… to be sodomized with glowsticks? Some conservatives say yes.

  10. The Griswold analogy is an apt one. Limiting rights to those explicity deliniated by the Constitution is a sure way to end up with few rights. The phrase ’emmanations and penumbras’ is among the silliest in jurisprudence, but the underlying concept is valid. Keep in mind that one of the principle objections to the Bill of Rights was that it would create a presumption that the rights it listed were the only ones people retain.
    Originalism is a good idea in some respects, but can get disturbingly Borkian.

  11. I don’t know if it’s worth looking too hard for the strategery behind the Roberts pick.

    He may just be a judge that Bush really likes.

  12. pull constitutional rights out of thin air

    This is a perception that I find hard to understand. The Constitution, via the Ninth, clearly gives the courts the ability to pull rights “out of thin air”. The problem I have with Roe, and the whole doctrine of Substantive Due Process, is that doctrine has no support via the lens of an Original Meaning interpretation. However, if various SCOTUS judges had the courage to wield the explicit power of the Ninth, combined with the power of incorporation found in the 14th, the foundation of Roe would be far more difficult to undermine for someone who uses a textualist/original meaning/strict constructionist doctrine in how they view the Constitution.

    My belief is that SCOTUS avoids the Ninth for fear of a populist backlash. If they honestly wielded that power, instead of having opponenets should “hey, they don’t gave that power”, they’d be thinking “gee, they do have that power” and would thus be more emboldened to attempt to revoke it from the courts.

    It would not surprise me to see Thomas uphold Roe on the grounds of the Ninth and a revocation of Substantive Due Process. Scalia, though, doesn’t have the nerve.

  13. Joe, I think you’re probably right. This president has an almost feudal quality about him in that he appears (IMHO) to value personal relationships above any other political calculus. Not saying whether that’s good or bad, just seems to be the case.

  14. Mr. Nice Guy —

    But why in the world would Bush make a big prime-time production out of the announcement of a sacrificial lamb, instead of the more casual sort of announcement common with such appointments? Seems to me like an unnecessary amplification of the damage if he’s planning on losing the fight. I’m more inclined to think that he intends to invest whatever political capital he has (or thinks he still has) in getting Roberts confirmed.

  15. Plus we’ve now forgotten about Rove…

    Remember the hubbablaoo about Souter? Now conservatives hate him.

    Here’s a question for those out there: how does Bork interpret the constitution, does it differ from Scalia? And is Bork’s method (positivism???) pejoratively described as “tyranny of the majority”?

    ignorantly,
    drf

  16. I wouldn’t bet more then $5 on it, but we’ll see how my theory holds.

    This Roberts guy looks total whitebread. A white male taking over what some (narrow-minded) may believe to be a “woman” slot doesn’t make much sense to me, unless this man is for the meat grinder. THEN Bush comes out with a Hispanic and/or woman and lays a bunch of bullshit about “hearing your call”. The liberals will have that much more to overcome after trashing a previous pick.. a relative moderate.

  17. Even if one believes in a right to privacy implied by the 9th Amendment, the question still remains how and when to apply it. And there’s simply no absolute way to apply that to abortion because there’s no legal precedent regarding when a preborn human attains legal status. That’s why the question should have been allowed to be debated in the political arena. My leftist former brother-in-law claimed abortion was more restricted now than before Roe. His point was that conservatives are a mounting danger. The point I took, although I suspect he’s exaggerating, is that Roe could have easily done more harm than good, even if such is measured purely in terms of “abortion rights,” and certainly in terms of allowing the democratic process to figure this shit out. As one who believes that some provisions and leeway for legal abortion is a very good thing, I’m nevertheless skeptical that Roe was either a constructive or legally logical way to do it.

  18. Good to know we can mark you down as anti-Griswold.

    It should be noted that believing that abortion and contraception should be state, rather than federal issues.

    In other words, in Jacob’s world (as I understand it), we get to move to Cali and blaze with the cops (good community relations builder), rather than having the feds shutting us down, bad and nationwide. Same thing on the rubbers. For even closer community relations, I suppose.

    In still other words, let Jesusland be Jesusland. The rest of us can live in a better place and right in the US to boot!

  19. I’m not willing to put that much power in the hands of nine unelected judges with lifetime appointments

    You may not be willing to, but then you are forced to live in denial of what is the written law of the land. If you don’t like it, amend it. Ignoring it requires selective cherry picking of the Constitution, making a mockery of it.

  20. Correction: Believing that abortion and contraception should be state, rather than federal issues is different than being anti-concraception.

  21. Umbriel:

    I don’t think Bush would hurt at all if he doggedly stood by his pick and have it trashed. This would only “reveal” the vicious partisan nature of the opposition.

    The liberals only have so much political capital to burn. Let them expend most of it on the first and even second round. As long as these nominees have ultra ultra clean backgrounds (no nanny/little boy blowjob/etc issues) Bush will look like the “reasonable” one all the way through.

  22. Umbriel,
    I know little about Roberts, but I assume he made it Prime Time because they needed a distraction from the Rove story. If it doesn’t work, expect a code Red and possibly the burning of another flipped agent (Khan) to boast about their progress.
    Not that it is here nor there, or that advocating on a client’s behalf is a good window on their beliefs, but Roberts has argued for flag burning, a mostly inconsequential thing that just astonishes and pains me for its profound wrongness.
    btw, I am a liberal who is interested in seeing what the electoral consequences of life without Roe would be, but I cannot say I am actively hoping for it (but my guess is it it a + for Dems).

  23. if that’s so, what’s left to protect us against majoritarian tyranny

    At the national level, the rather quaint notion that the Constitution means what it says about enumerated and limited powers, together with the stuff that is actually in the Bill of Rights.

  24. Dave W.,

    That works nicely in theory, but Jesusland will and does want to make all of America Jesusland via the power of the federal government. We live in a world where the federal government is very important, and there is no way to close pandora’s box.

  25. “It will be interesting to hear what he thinks about limits on executive power. For instance, does the President have the unqualified power to label a person an enemy combatant and send him to a prison camp…um, I mean, frat house… to be sodomized with glowsticks?”

    Bad news, thoreau, Judge Roberts is apparently not that disturbed by frat house pranks: http://www.slate.com/id/2123055/

  26. That works nicely in theory, but Jesusland will and does want to make all of America Jesusland via the power of the federal government. We live in a world where the federal government is very important, and there is no way to close pandora’s box.

    No wonder Jesusland is playing such hardball. They are getting no quarter from you!

    I think “the Right” uses “the Left” as an excuse to ignore states rights and vice versa.* It seems like there should be some way out of that stand-off, but I also hear what you are sayin’.

    FOOTNOTE

    * This statement is not personally directed at you, H. I don’t know if you are right or left or none-of-the-above.

  27. Hakluyt,

    This is exactly right. So many libertarians make the mistake of thinking the Republicans (the party whom many are closet members of) will respect federalism when they finally control all the levers of government. This is just simply idealistic nonsense. It seems to stem form a blanket hatred of liberals.

    Federalism is the only workable solution but the motivation of the religious right is not just to overturn Roe and all rights to privacy. Go look up Dominion Theology for a primer.

  28. In his first year on the appeals court he seemed to throw in his lot in one case with advocates of the new federalism, that is, judges and scholars who believe Congress is limited in the laws it may enact, leaving some issues to states.

    I hear those New Federalist whack jobs are pushing for a constitutional amendment that reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Freakin’ radicals.

  29. In still other words, let Jesusland be Jesusland. The rest of us can live in a better place and right in the US to boot!

    Yeah, right, so long as Congress doesn’t get it into its collective head to enact laws turning the whole US into Jesusland. Roe v. Wade being overturned wouldn’t bother me so much except that even if the Northeast/California legislatures passed their own abortion rights bills which is likely, I don’t trust the Republicans in DC to not preempt states’ right on this one.

  30. Dave W.,

    According to Thoreau I’m a doctrinaire paleo-libertarian. Of course I’m a first supporter of the Union victory in the Civil War, so that puts a chink in that theory. 🙂

  31. I’ll go on record as anti Griswold in the same sense I’m anti Roe. If you want another right, amend the document to add it. Otherwise, you wind up not with protection from popular whim but a court that is pressured by popular opinion to create positive rights (which are not rights at all).

    I’ll also go on record as noting that there are some lines of argument that are just thin in an absolute sense. You are doing more harm than good when you distort fairly uncontroversial plain meaning to accomodate your new found penumbra.

  32. Correction:

    …firm supporter…

  33. Nice Guy & Coach —

    Point taken about the desire for a distraction from Rove as justification. I don’t think that in the current political climate the Democrats’ opposition to this appointment is going to be especially costly for them, but I accept the possibility that the administration has an equally or more conservative female and/or minority candidate up its sleeve.

    David — I’d agree with that distinction personally, but I’m not confident that things couldn’t creep in the direction Daniel proposes, much the way commerce clause decisions have crept.

  34. So many libertarians make the mistake of thinking the Democrats (the party many identify with on social issues) will respect federalism when they finally control all the levers of government. This is just simply idealistic nonsense. It seems to stem from a blanket hatred of conservatives.

    Looks like the sides need a states-rights-oriented mediator here. One who isn’t down in the depths despair or feeling the funk of futility.

  35. Jason Ligon,

    So, how far are you willing to go back? Do you want to go back to the era of the Slaughterhouse cases?

    I think people are just generally unaware of how much broader our liberties are concerning speech (thanks Holmes, you elitist bastard) and the like due to court decisions that rest on legal reasoning many “originalists” find dubious.

  36. Jason Liqon,

    I’m surprised you live in denial of the power of the Ninth. There is no amendment necessary beyond this one to add “another right”.

  37. Dave W.,

    And of course my analysis of human society, etc. through the lense of the historical record makes me nearly a practitioner of historicism – which should cast me far outside the boundaries of the Popper version of libertarianism (which seems to be a version practiced by the neo-libertarians).

  38. Yeah, I was just trying to say that you didn’t seem to be a Repub-baiting Democrat nor a Dem-baiting Repub.

  39. I’ll second the notion that a big fight against a charasmatic nominee who gets props from academics and judges on both sides of the aisle will hurt the Democrats. They would be better off wailing about how bad he is, but not trying to block him, thus sendint the message “this is what you get when you vote Republican.”

    Jason, how does privacy – defined as a space into which the government may not intrude – qualify as a positive right?

  40. “Correction: Believing that abortion and contraception should be state, rather than federal issues is different than being anti-concraception.”

    Y’all are awfully cavalier about what this does to the people south of the Mason-Dixon line. It’s one thing to glibly assert that we could just fly 1000 miles to the right state to buy our rubbers, it’s quite another to suggest that a poor person should just suck it up.

  41. “Looks like the sides need a states-rights-oriented mediator here.”

    Oh, bullshit. When the Dems controlled the Federal levers, rights at the state level were a hell of a lot more respected than they are now.

  42. “Believing that abortion and contraception should be state, rather than federal issues is different than being anti-concraception.”

    Similarly, believing that takings should be state and local, rather than federal, issues is different than being pro-taking.

    Right?


  43. Y’all are awfully cavalier about what this does to the people south of the Mason-Dixon line. It’s one thing to glibly assert that we could just fly 1000 miles to the right state to buy our rubbers, it’s quite another to suggest that a poor person should just suck it up.
    Comment by: M1EK at July 20, 2005 11:21 AM

    Well, they could just move north and provide cheap labor.

  44. Dave W.,

    The older I get the more I despise both major parties. 🙂 In a moment of weakness in the winter of 2004 I did give $10 to the Kerry campaign though. It was at a time that he was having a hard time raising money. I felt sorry for him in light of what I thought would be a Bush juggernaut. I’ll never make that fucking mistake again.

    Happily I got what I was hoping for; a very weak President.

  45. Joe,

    The distinction here is that eminent domain is a sort of right the Constitution is explicit about. Probably because states have a natural inclination to seize property that is much more fundamental and predictable and economically systemic than a given state’s opinions on rubbers or weed might be.

    On the other hand, the Constitution is not explicit about rubbers or weed, which indicates to me that this issue should be left to the states in a way that eminent domain law should not. In other words, I am saying that the Constitution’s text clearly puts eminent domain on a different federalist footing than it does rubbers or weed. I am also saying that there seem to be good policy reasons for this Constitutional distinction.

    That is how I explain away any apparent inconsistency.

    KELO Tangent:

    btw, I have different feelings on Kelo than you might guess. I think the new permissible grounds of condemnation would be acceptable, so long as valuation was fair. I think that condemnations based on an increased tax base justifications under Kelo need to consider the increased tax revenue projections (optimistic tho they may turn out to be) as an important (probably primary) factor in valuation. In other words, if you really are going to be a huge economic boon, then the lucky hold-outs are entitled to a piece of that from the developer at the outset (whether or not the rosy predictions materialize as planned).

    Kelo pits states rights against individual rights. This is a fascinating issue. Very antebellum. Doesn’t have much pertinence to state v. fed federalism questions to my mind tho.

  46. Dave W., the problem with your argument is that Jesusland doesn’t exist – You’re talking about slim majorities in many red states – including the South – that would want to outlaw abortion.

  47. Excellent post Mr. Sullum

    I don’t know much about Roberts except that this morning’s sub-head in the local rag noted that the Dems Vow Tough Hearing.

    Now there’s a surprise. Jesus Chrysler, if Bush nominated Barbara Boxer or her Limo Lib compadre, the Dems would blow both/either out of the saddle.

  48. Blammo,

    You are correct, under my understanding of Jacob’s world, the states would be various shades of purple (mountains majesty), not red or blue.

    The thing is: this paradigm is even more *beutiful* (for spacious skies) than my over simplistic and false red / blue dichotomy. Cause more intermediate choice. 2 sizes do not fit all. But maybe 50 do.

  49. So many libertarians make the mistake of thinking the Republicans (the party whom many are closet members of) will respect federalism when they finally control all the levers of government.

    I’m reminded of a quote from PJ O’Rourke, which I am about to paraphrase, as paraphasing as about as much as my memory can muster right now:

    “Republicans insist that big government doesn’t work; then they get elected and prove it.”

  50. keith,

    *ROFL*

  51. “Dave W., the problem with your argument is that Jesusland doesn’t exist – You’re talking about slim majorities in many red states – including the South – that would want to outlaw abortion.”

    blammo, you’re incorrect. Most red states in the South would overwhelmingly ban abortion – I provided “Mona” an example in a thread weeks ago from Mississippi, in which the margin was about 80-20.

    While part of me would relish the exodus of what few educated people remain in those states, most of me would be more concerned about the fate of the poor young women in those states who would be at most risk.

  52. A good argument, Dave. I guess the situations aren’t comparable.

    As a practicing planner, I can at least partially endorse what you write about the property owners getting a cut of the increase in value. Economic Development shouldn’t occur at the parcel level, but at the city level. An economic development revitalization project shouldn’t just make the parcel(s) on which it takes place more valuable, but should change the way the entire city looks and functions, by virtue of its having a more attractive, prosperous district than existed before. The implication of your proposal (besides making such takings more expensive, and therefore rare) would be to discourage takings that only “replace a house with a McDonald’s,” in favor of projects that make the entire city more prosperous. Rather than sticking a rich district in a poor city, they would seek to make the entire city richer.

  53. If the Constitution protects an individual’s right to privacy, I don’t understand how that implies that abortion must be legal.

    If I invite someone into the privacy of my home and chop off their head, is that legal?

    If my grandma has a terminal illness and is in great pain, is taking her into my house and giving her a lethal dose of a drug legal?

    Isn’t the big question on abortion whether or not it’s murder? I certainly don’t want somebody’s right of privacy to trump my right to not be murdered. Why is abortion not murder, but assisted suicide is? What in the Constitution defines what is murder? Isn’t that a matter to be left to the states?

  54. Most red states in the South would overwhelmingly ban abortion – I provided “Mona” an example in a thread weeks ago from Mississippi, in which the margin was about 80-20.

    Great, so Mississippi bans all abortion. Texas makes a rape exception. Florida makes a rape exception and an incest exception. Georgia makes a rape exception and a gravely deformed fetus exception. South Carolina allows up to one month. North Carolina allows up to 2 months, but requires parental consent. Pennsylvania allows first trimester but prescribes a waiting period. NYS prescribes a waiting period and requires the abortion requester to view an ultrasound before deciding. Connecticut has no waiting period, but requires that information on adoption alternatives be provided. Massachusetts allows all abortions. Maine requires them.

    Like I said, beauty, eh?

  55. Hehe. Full PJ quote:

    The Democrats are the party that says government will make you smarter, taller, richer, and remove the crabgrass on your lawn. The Republicans are the party that says government doesn’t work and then they get elected and prove it.

  56. side note to Joe: EXACTLY!

  57. M1EK,

    You may be right about the South (Florida and Missouri might move blue, but any southerner will tell you they’re not the real South), but Montana, Colorado, New Mexico, Arizona, Nevada, and maybe a Dakota would become blue or swing. In addition, swing states like Iowa, Minnesota, Michigan, Ohio, and Pennsylvania would become solidly blue.

  58. No one should fear federalism when it comes to abortion. Think about it – abortion is basically unavailable in states like Alabama now (93% of counties have no service).

    The thing to fear is federal instrusion on the issue if Roe is overturned.

  59. Dave W.,

    Maine requires them? Sorry, requiring medical treatment is patently a violation of the Constitution.

  60. Hey Dave,

    Following up, if the city takes a parcel whose final disposition ends up making it less valuable – say, if it takes a store and sells the land to a private school – does that mean the city can pay the ower less than what his property is worth at the time of the taking?

    How about if a regulation makes someone’s heretofore worthless property have value – is that regulatory giving, and to whom should the owner send the check?

  61. If Roberts has a Borkian view of rights, I’m quite frightened. Bork has stated that he believes the 1st Amendment only portects political speech (how a so called originalist can believe that, since there’s nothing in the text that says this, is beyond me). If Roberts is more like Thomas then let him play, if he’s like Scalia, I’ll have reservations, but he’d still be a’ight. Now if he’s a outer on the other hand ….

    Count me as another pro-choicer that’s anti-Roe. Of course, I have no doubt that DC Reps will try to dictate abortion to all the states.

  62. It would be interesting to see what would happen to the religious right, politically, if the bible belt states prohibited abortion state by state. Roe v. Wade has obviously been a galvanizing force for them, what is the religious right without it?

    …Might not the question of gay marriage be decided, likewise, at the state level? …I don’t think questions of gay marriage and prayer in public schools galvanize the religious right in the same way that the abortion issue does. …And “protecting” us from harmful free speech is as much a function of the Hillary Clinton left as the religious right.

  63. I knew I was going to get an earful. I probably knee jerked my earlier comments. I am not especially opposed to the outcomes in either Roe or Griswold, but I hate the methodology because it is so incredibly random.

    The reasoning was paper thin, and while I agree that under the 9th we have more rights than are outlined, those should theoretically be derivable from something. What concerns me is that if you can use Griswold to get a right of privacy from government interference, then have Roe bounce off Griswold to say that abortions are part of your right to privacy, it seems to me that you can assert anything you want. I don’t know what this right means. So far, it only seems to have to do with contraception.

    Now that I’m thinking about this more, I suppose that as long as only restrictions on government power are created using the out of thin air tactic, I’m fine with it. I just shudder at the thought of someone saying something like “Well, all of the first 8 amendments assume you are alive, so clearly the constitution grants you the right to free medical care.” Thin reasoning scares me on that front.

  64. Just about everyone is pro-choice. We just differ on when that choice is best suited to be enacted. The “reality based community” will tell you that the choice is best suited after conception. The common sense community will tell you that the choice is best suited before ejaculation.

    Maybe the US nees a “Just Pull Out” movement along the lines of “Just Say No”. Ron Jeremy could be the spokesperson with a supporting cast of professional athletes, politicians and musicians that have all produced bastard children or induced abortions.

    I have the slogan already.

    “Go ahead and scream and shout. Just don’t forget to lean and pull out.”

    What I enjoy about SCOTUS nominations is the chance to go back and review previous hearings. Justice Breyer was grilled for his “pro-business” views at his hearing. But he coasted because his “pro-business” views were related to his work on airline deregulation as Chief Counsel to the Senate Judiciary Committee in the 70s. History is fantastic because Breyer was hired by Senator Ted Kennedy specifically to work on the airline deregulation.

    Teddy didn’t utter a peep about this during the Breyer hearing. Breyer was one of his boys.

  65. I saw an RNC spinner on CNN this morning, who said, to paraphrase, “Roberts is an originalist. He doesn’t believe in making law from the bench.”

    Those statements are completely contradictory! An originalist is one who believes the job of the judiciary is to change the law, and its application, from the bench, in order to bring it into conformity with what he thinks the founders would have wanted.

    The Right seems to believe that the terms strict constructionist, minimalist, judicial restraint, federalist, and originalist are all interchageable. Methinks this is a consequence of the liberals’ dominance during the middle part of the 20th century, and the strange-bedfellows conservative coalition that melded to oppose it. Virtually all of the various strains of conservatism we see today are drawn from this same source, which held anti-leftism as its core belief, and submerged their own differences.

    That, and the eager dishonesty and disrespect for the public that characterizes the GOP these days.

  66. Roe v. Wade has obviously been a galvanizing force for them, what is the religious right without it?

    In some regards, but it’s political applications are minimal. Nearly everything is struck down by Roe or Casey. The so called “religious right” doesn’t even get to be the “religious right” because everything is defeated by the courts. Defeat Roe and the political landscape suffers an earthquake. It’s a crapshoot to guess who is left standing after it.

    Without Roe we could actually have a real debate about when life begins. Will the defense of the unborn work politically? Or, will the defense that politicians are trying to control women’s bodies win?

    The arguments are well tuned for the libertarians to discuss. Life, as the fundamental starting point for libertarianism, would get a stiff beating from both sides of the coin.

  67. my view of the 9th and 10th amendments is that the 9th creates no substantive rights of the people, and the 10th creates no substantive state powers. they are essentially only rules of construction. we can’t rely on the 9th to protect “new” rights. nor can we count on equal protection/liberty, since the govt will always be able to come up with a “compelling state interest” to ban whatever it wants to ban. on abortion or any other “privacy” issues i still don’t see a way to get to the right result via the right reasoning.

  68. Joe,

    My valuation comments are narrowly directed to the sitch where the taking is based on projected enhanced tax revenue. For other kinds of takings, that are justified using less tangible or more diffuse projected benefits, I would use the traditional valuation method or some other new valuation method I haven’t thought about (I do not really know the law in this area in any detail). Environmental, school and blight takings would all be examples where I don’t think projected tax base enhancements (or losses!) are much relevant.

    My thinking is less sophisticated than yours. How I would put it is that if the state-business partnerships that do these Kelo takings are really confident in their tax projections, then they should be willing to pay a piece out and assume the risk of failure w.r.t. that piece. As a matter of freakonomics, the state-business partnerships need strong incentives to make only correct guesses in the touchy, personal rights laden domain of Kelo. In other words, when the taking is based on quantification of benefits, then the quantification problems observed in other contexts should disappear.

    To tie it back to the Constitution, I think the requirement is “fair” compensation. To me, this hazy word is an obvious invitation for the Court to make law in the valuation area. What is “fair” in the context of a school taking is not the same as what is “fair” in the context of a big box type taking.

  69. The whining about poor women in red states who wouldn’t be able to get abortions is borderline absurd. We are living in the year 2005. Compared to the price of an aborition, a Greyhound ticket to Chicago is peanuts. Selling her boyfriend’s sneakers would probably cover it.

  70. Yeah Dave, I was just busting your balls. Economic Development takings are a special case.

    I wonder why Scott chose “sneakers” over “mudflaps.”

  71. Cause black people like sneakers and white people like mudflaps. Everybody knows that. Scott wamted to evoke a black couple aborting for some reason, I think.

  72. I’ve never underastood this about libertarians, and I’m wondering if somebody will explain–why do you interpret federalism to mean that the majority gets to decide what rights the minority individual has? Griswald and Roe have already been mentioned–let the majority decide whether or not individuals can use birth control? Or whether woman can control their reproductive organs? What about the Lawrence decision saying that states can’t criminalize consensual sodomy–should that too be left to majority rule? I agree with the Federalist principle that the citizens of a state should be empowered to make decisions that affect ALL the people in a state; I just don’t see what’s libertarian about letting the majority make decisions that don’t effect them, but DO affect other people.

    Serious question: the Constitution says nothing about people’s right to choose hairstyles or hair colors. If a state voted to require all residents to either bleach their hair blonde, or leave–do you think the Supreme Court should strike this law down, or is this a matter best left to the states? (Yes, I know that’s a ridiculous example, but in my eyes no more ridiculous than the idea that MY sex life is YOUR business, so you should get to vote on it.)

  73. It?s foolish to think that just because someone has an expansive view of the Constitution that they will guarantee more rights than someone who is a strict constructionist. In fact recently the concept of a living document has restricted our rights while it has been the strict constructionists who have been arguing for rights. For example, Scalia the majority opinion last year in a case involving the right to a jury trial for the penalty phase of capital cases. Under a living Constitution view, times had changed, a majority of states did not grant a jury trial for the penalty phase and the meaning of a jury trial had changed. Scalia would have none of it, a right to a jury trial meant just that, a right to a trial in all deliberative phases.

    Another good example is the Kelo case. It was the liberal justices who read the taking clause to mean something other than what it?s plainly said and meant to mean. Again, it was Scalia, as well as O’Conner, who read the Constitution to mean what it said and the takings clause could not be used for private purposes.

    Most egregious of all is of course campaign finance. Now, thanks to the expansive view of the Constitution championed by the left wing of the court, the First Amendment protects virtually any form of expression no matter how vile except that form of expression it was originally intended to protect, political speech. The essence of the First Amendment was to protect political speech. Thanks to the living Constitution and John McCain, political speech is arguably now more restricted than at anytime in living memory.

    The danger of the philosophy of a living constitution is that there is no guarantee that it is always going to expand our way. The document can in fact contract and provide less protection depending on the political winds and the whims of the judges. We are safer with a strict constructionist view. We may loose a few rights dreamed up in the last forty years, but in return we get bedrock Constitutional rights that are guaranteed by the Constitution and will not change with the political winds. More importantly, a more restrained court means that whichever side you may be on concerning a political argument, you actually have a chance to have an election matter because the courts are much more likely to defer to the will of the legislature rather than enforce their own w

  74. Jennifer,

    I’ve gone through my pro-life argument with you before–you may recall that there was no mention of God or the preciousness of life. There was a mention of “Special Responsibility”, etc. …remember?

    Once I accept that a fetus has rights, and that the mother in question consented to the possibility of producing a fetus, as a libertarian, I want the law to guard against coercion.

    …And it seems to me that in the case of abortion, a rights holding fetus hasn’t consented to anything.

  75. I’m about as pro-choice as one can get, but IMO Roe is a house of cards. Of course an argument can be made that knocking down Roe would mostly be a boon to the pro-choice Dems.

  76. Jennifer,

    That’s a really good question. If I’m a Supreme Court justice, I’d strike down the hair-color law on both 9th and 14th Amendment grounds. 14th, because a totally random law like that violates everyone’s due process (the old “substantive due process” argument of the Lochner era).

    I see abortion as something different. Abortion isn’t a constitutional issue, because it’s a case of ordinary criminal law: is abortion an illegal homicide, or not? My personal view is “no,” but I can see both sides. Therefore, since laws about murder and assault and whatnot are the province of the states, states should decide whether abortions should be criminal conduct.

    I’m also a federalist on gay marriage, but purely for practical reasons: I think going state-by-state is the best way to get gay marriage through for the most people, in the shortest time.

  77. …forgot to finish.

    Anyway, my thinking is that just as crimes like murder should be legislated and enforced by the states, perhaps the question of abortion should be also. …That doesn’t mean such crimes should be a function of popular sovereignty, it’s just that the proper venue is the states.

    It’s reasonable to expect different states to answer such questions differently. …and to expect those differences to represent the opinions of their constituencies.

  78. I agree with Jacob. But for a change, I’d like to see a self-proclaimed “originalist” jurist who is a strict constructionist when it comes to Presidential war powers and Fourth Amendment restraints on federal law enforcement–and not just on stuff that pisses off liberals.

    Your usual, garden-variety “Federalist Society”-style “strict constructionist” is usually more likely to bend over and grease up on such issues. Until I see indications to the contrary, I have no reason to believe that Bush has appointed but one of the above.

  79. We are living in the year 2005. Compared to the price of an aborition, a Greyhound ticket to Chicago is peanuts.

    Crossing state lines with unlicensed alcohol is already a federal offense per the commerce clause. The Dred Scott decision, as old as it is, is still on the books affirming the principle that the federal government has an obligation to prevent someone from crossing state lines if an act deemed illegal in the original state is committed, and enforcing that obligation is also the responsibility of the state where the act is legal.

    Knowing that, how can you say that, following the repeal of the Roe decision, Congress would not enact laws saying that it is a federal offense to cross state lines to obtain an abortion if it would be illegal in the state of domicile? What your proposing is no different than running moonshine. And this Congress is prepared to trample states’ rights in the matter.

  80. “Great, so Mississippi bans all abortion. Texas makes a rape exception. Florida makes a rape exception and an incest exception. Georgia makes a rape exception and a gravely deformed fetus exception. South Carolina allows up to one month. North Carolina allows up to 2 months, but requires parental consent. Pennsylvania allows first trimester but prescribes a waiting period. NYS prescribes a waiting period and requires the abortion requester to view an ultrasound before deciding. Connecticut has no waiting period, but requires that information on adoption alternatives be provided. Massachusetts allows all abortions. Maine requires them.

    Like I said, beauty, eh?”

    Except if you live in Miami and have to travel to DC to get your abortion. Easy for you to say how easy it is to take four days off work and throw down a couple hundred for Greyhound.

    Also, something you people are conveniently leaving out, some of those same states would ban _birth_ _control_ if they could.

  81. M1EK – I don’t think they’d be able to do that in any case, even if Roe was overturned. I forget which case it was, but joe shmoe v. Connecticut struck down state laws prohibiting birth control, and was on much steadier legal footing than Roe.

  82. Griswold is on the shame shaky footing as Roe. There is no distinction there in terms of creating a right under a broad concept of privacy.

  83. cdunlea,

    Even apart from federal law, I’d be surprised if prosecutors in no abortion states didn’t charge transporters with conspiracy or as an accessory, etc.

    …but, indeed, given recent decisions, it wouldn’t surprise me if the Court found that a trip across state borders for medical care constitutes interstate commerce.

  84. cdunlea,

    I can just see it. Pro-lifers at every Greyhound terminal and airport trying to alert authorities to a pregnant woman who has a ticket out of state.

    I don’t doubt for a minute this Congress will use whatever federal authority they can to effectively dilute states’ rights to have legal abortion. The Schiavo case clearly showed that.

  85. If Roberts has a Borkian view of rights, I’m quite frightened. Bork has stated that he believes the 1st Amendment only portects political speech

    That would be a bad combination with a court that doesn’t much believe in the individual right to free political speech.

  86. Anti-Theocrat,
    Right you are… that’s what I get for taking Con Law freshman year of college.
    However. If abortion became a state issue, and there were indeed state AGs and DAs willing to prosecute people who crossed state lines to get an abortion, why isn’t it just as likely that there would be pro-abortion groups trying to help as anti-abortion groups trying to hinder?
    Also, the point of Federalism is the idea that if you don’t like the laws where you are, you can move.
    “But moving’s so hard” you say? boo hoo. It’s not such an absurd suggestion to tell people to move where they want to live.

  87. “why isn’t it just as likely that there would be pro-abortion groups trying to help as anti-abortion groups trying to hinder?”

    Uh, because the anti-abortion groups would have the law on their side?

    “It’s not such an absurd suggestion to tell people to move where they want to live.”

    OK. All you gun nuts feel free not to let the Blue America screen door hit your ass on the way out.

  88. cdunlea — I think there’s a key distinction in where the act deemed illegal takes place. In the Dred Scott example, the individual is fleeing the state where he committed the offense (escaping). With alcohol, you’re violating the law of the state that you’ve brought the alcohol into.

    But there’s nothing illegal about someone from Utah travelling to Nevada to gamble or visit a brothel. Or driving from Massachusetts to Georgia to buy and use fireworks (as long as you don’t try to bring them home). Those existing legal principles, therefore, wouldn’t prohibit visiting another state to have an abortion performed.

    To block such activity, you’d need either to recognize “fetal rights” of some sort, or to recognize some right of the state of residency over the pregnancy (along the lines of the “state interests” offered as justifications for bans on birth control, and sometimes sodomy).

    Or maybe just yet another expansion of the commerce clause…

  89. RC,

    I agree about mobility.

    The funny thing is that Blue States subsidize the Bible Belt states and liberals are too dumb to realize that without their tax dollars, these states would be economic waste dumps. They would even be more so if they adopt extremely regressive social policies.

    Maybe I’m a nut but I believe the chance for a legitimate new pary exists when/if the Republican party cracks up when/if Roe is undone.

  90. “It’s not such an absurd suggestion to tell people to move where they want to live.”

    Yes, U-Haul will take your credit card number right over the phone, and there’s usually at least one guy on the moving crew who speaks English. *Rolls eyes*

  91. Those existing legal principles, therefore, wouldn’t prohibit visiting another state to have an abortion performed.

    Recent legislation makes it illegal for an adult to take a pregnant minor to a state with less abortion restrictions for her age group than her home state. Even if the adult is a Greyhound bus driver and the girl a ticketholder.

    But for argument’s sake, let’s forget about abortion, which IS a libertarian issue if you think abortion actually kills a human being. Forget about it for now. What about racial segregation? The Constitution only grants minorities the right to vote and not be slaves. Were the Supremes wrong to strike down the old racial segrregation laws? Suppose Mississippi decides to make it illegal for blacks to hold government jobs?

    And I STILL don’t understand how it’s a “libertarian” viewpoint to let the majority vote on whether or not I can use birth control, or what body parts my sex partner should have. I thought libertarianism was about individual rights, not majority rule against the individual?

  92. M1EK,
    First, I’m not a gun nut. Gun enthusiast, perhaps, but whatever. Second, I live in a very very blue state and love it.
    Think about abortion like any other economic service. Now think about this (not entirely appropriate, but gets the idea across):

    I like Sonic Burger. However, as a resident of the Northeast, I can not get Sonic Burger. Either I can whine and complain until Sonic Burger isn’t only present, but easily accessable for all the residents of my state, or I could move to a state where the delectable burgers were available.

    Hypothetically, I could even get a large group of like-minded citizens together and show such a great demand for burgers that Sonic would have almost no choice but to open up a store nearby.

    As a bonus of using method #2 to get the burgers, when I moved out of state I would leave those heathen, morally retarded burger-haters behind.

  93. Randolph-
    For your analogy to really work, assume that Sonic Burger has been declared illegal by the state.

  94. Randolph,

    I have the urge to kick you in the nuts, and I’m a guy. I imagine you should keep this kind of argument to yourself when amongst polite company.

  95. Jennifer, there are many different types of libertarians. You’re confusing pure federalists with libertarians. They are not one in the same.

  96. Thanks, anti-theocrat.

  97. Roe was a privacy case. Privacy is not an unenumerated right, but explicitly guaranteed by the 4th Amendment. The question was whether access to medical services, such as abortion, were among unenumerated rights (Roe said “yes”), and whether the prosecution of laws against specific medical services could legally occur if necessarily entailing the abridgment of constitutionally guaranteed privacy (Roe said “no” for early term abortions but not late term ones, as the fetus would then be close enough to being a person, as to establish compelling state interest in its protection).

    That’s the essence of Roe. Notice that I am not laughing yet? (Although, considering that Raich pretty much demolished that wall of privacy in service of the commerce clause, I’ll be cackling with the absurdity of it all, whenever the same logic is inevitably applied to Roe.)

    I read that Judge Roberts once wrote that he could find nothing in the text of the Constitution that mentioned a right to abortion. But if the fetus’s personhood is not established, and nobody else is being harmed by the procedure, then access to abortion or any medical service is clearly covered by the Ninth Amendment. How is it that a “conservative” judge could miss that point?

  98. Well now I feel like an ass. I guess my big picture is this: If there’s a way to get fundies/pro-lifers out of the federal political process, it will lead to two things simultaneously:

    1. people will lose an important right and moralistic fascism will gain ground in a few states

    2. in most states, abortion will remain legal and perhaps even be subjected to less regulation.

    Obviously, this makes life sweet for those who already live in a state where their personal views are confirmed by their state’s views. If the issue of abortion availability is truly important to you, you can move to where it is legal and safe. I really don’t get what’s so crazy about the idea that people can move to different states. I guess people aren’t willing to put down money on their principles.

    (full disclosure – I am not some haughty businessman saying “let them eat cake!,” I’m a recent college grad in a great deal of debt. I plan to move to New Hampshire and work with the FSP within the next 2 years.)

  99. “I’m a recent college grad in a great deal of debt”

    doesn’t map well to the circumstances of the typical resident of Mississippi we’re talking about here. That’s where you’re coming off incredibly arrogant.

  100. iBut if the fetus’s personhood is not established, and nobody else is being harmed by the procedure, then access to abortion or any medical service is clearly covered by the Ninth Amendment. How is it that a “conservative” judge could miss that point?

    Two ways:

    1. by believing that the personhood of a fetus is “established” at some point pre-birth (I believe that Roe allows states to basically make this determination in the final trimester).

    2. By placing the burden of “disestablishing” personhood on those who seek to abort and then examining the evidence and finding that NARAL et al haven’t met this burden.

    I am not saying that I agree with either of these approaches, but I did want to show how a reasonable person might handle your pointed question.

  101. Jennifer,
    Just because I am a libertarian doesn’t mean I can’t be intellectually honest about what the US Constitution does or doesn’t say. I don’t support restricitions on abortion. And Roe v. Wade is one of the worst decisions in the history of our legal system. No contradiciton there.

  102. Further: Establish / disestablish are in the tone quotes because they are the questioner’s preferred terminology. ppl seem to get real touchy about terminology in this context and I would rather steer this important discussion away from a debate over connotations of words.

  103. OK, I am 100% pro-abortion, including late term abortions. However, I have to say that I do find Roe to be a little constitutionally fugly for my tastes. Yes, I know, if you leave it up to the states, chances are the states run by the bible-beaters will likely make it capital offense. However, I think the only solution would be a constitutional amendement protecting the proceedure. However, that isn’t likely to happen, so it looks like we may have to stick to Roe.

  104. Scott-
    I already said to forget about abortion for the purposes of this question. What about the Supreme’s anti-segregation decision? The Constitution says NOTHING about racial equality before the law; it only says that minorities can vote, and can’t be slaves. And what about the idea that the majority can vote on what I do with a consenting adult behind closed doors in my bedroom?

  105. “How is it that a “conservative” judge could miss that point?”

    I don’t know, James. How can a conservative judge miss that the establishment clause and the free exercise claue taken together constitutes a “wall of seperation” between church and state? However, that doesn’t stop the fundies from procliaming that it doesn’t and we should be legislating from the meeting house.

  106. OK, I am 100% pro-abortion, including late term abortions.

    How about infanticide?

    Does something metaphysically special happen at the moment of birth?

  107. “What about the Supreme’s anti-segregation decision? The Constitution says NOTHING about racial equality before the law; it only says that minorities can vote, and can’t be slaves. And what about the idea that the majority can vote on what I do with a consenting adult behind closed doors in my bedroom?”

    Yeah, it does suck, Jennifer. It would be nice if the founders had the forethought and insight to have thought of every historical eventuality in regards to human freedom. Sadly, they didn’t. Thomas Jefferson waxed eloquently about the rights of man, but he owned slaves (as did a large portion of the founders). I don’t think any of them would have stood for the notion that women folk should be allowed to vote. It’s been a long slow, painful road to make up for this shortcomings, and we’ve still quite a ways to go.

    The trouble is, the very document and the government that was designed to protect our essential freedoms makes necessary change slow. It’s a Catch 22 I’m afraid. If we scraped the whole damn document and start again, what rights will be taken out and what “rights” (i.e. “right” to health care, “right” to income, right to housing, etc.) will be put in?

    …And people wonder why I’m so negative.

  108. No. Ppl wonder why you are so callous about late term fetuses.

  109. How about infanticide?

    I’m all for it. Maybe it’s just that I hate children (smelly, noisy animals, all of them), but I frankly don’t see why we get all bent out of shape when we find a dead baby in dumpster and go on witch hunt to find the teenage mother who put it there to spare herself a life of maternal drudgery. The infant was not providing from itself and society, so its death is not a detriment to civilization. It’s the death of the mature and the experienced we should be morning, since we will not see their like again. We can just breed more brats if we need them.

    Now, of course, you’ll ask what about childhood, then what about adolescence, then what about adulthood, then what about old age… yadda yadda yadda…

  110. People ought to realize that Roe is no longer in effect; its the provisions of Casey that are.

    Dave W.,

    Yeah, the fetus is out of the womb.

  111. H,

    If we stuff it back in the womb does it become dehumanized again?

    Does it matter whose womb it is stuffed back into?

    Does the womb it is stuffed back into have to be a womb of a living person?

  112. “best bet is to create a Federal Government that is as weak as possible.”

    While allowing the states to become virtual dictatorships, right?

  113. Thanks for the forthcoming answer, A. I guess I wouldn’t exactly want you in charge of my nursing home.

  114. It?s foolish to think that just because someone has an expansive view of the Constitution that they will guarantee more rights than someone who is a strict constructionist.

    mr john, while i agree that the “living document” interpretation is subject to abuse, i think you misunderstand the nature of constructionism. mr gunnels had it right when he said

    a far less free society is acceptable to him as long as the sort of vulgar majoritarianism he perfers remains in situ

    constructionism is a means to sideline the courts from government — to reverse marbury vs madison on some level. the idea that there is a single holy interpretation of the document is a much-advertised notion, but it’s ridiculous prima facie. does the bible have only one interpretation as well? the founders argued ever after the constitutional convention about what the document really meant because its meaning is eternally debatable.

    once you do away with the notion that there was ever a universally-held “correct” interpretation at any point, the apparent ideology of constructionism becomes an obvious farce. so what is constructionism?

    there’s been a lot written on this subject, but in short, it’s an attempt to recast the founding from an esentially english republican parliamentarian re-establishment to a proxie french revolution with full rousseauian panoply. it’s rewriting the american past to suit the ideology of unlimited jacobin majoritarianism in the present.

    the court is a decidedly anti-majoritarian, anti-populist institution — as it was designed to be by the parliamentary founders, who abhorred the idea of mob rule and designed protections against it modeled on the lords. as this limits the voice of the majority (and the power of those who believe they represent them), the work of constructionists has been to sideline the court and minimize its authority, thereby expanding the power of congress and the presidency as the offices of vox populi.

    and that is what there is to worry about in roberts — scalia and his ilk are intent on further disassembling the balance of power that has already suffered so much in the last 100 years and are already a weakened bulwark against lawless tyranny. a constructionist majority in the court (should one ever arise) would offer carte blanche to the elected president — and voila! the republic is over, in fact if not name.

  115. “If we stuff it back in the womb does it become dehumanized again?”

    Human beings are not “born,” they “grown” through education and socialization. A fetus/infant is only human in the Homo sapiens sense of the word.

  116. And when people become callous, perhaps they grow right back out of their humanity?

  117. if seen in that sense, many of scalia’s opinions — including kelo — are more understandable, imo.

  118. “And when people become callous, perhaps they grow right back out of their humanity?”

    …or perhaps because they cease to be human when they don’t by into your religious bullshit, correct?

  119. In my world ppl start growing into their humanity pretty early and don’t grow out of it til pretty late. Their religion, or lack thereof, of the subject is irrelevant.

  120. Jennifer,

    The 14th Amendment pretty clearly guarantees everyone equal protection and due process. State-enabled segregation obviously violates that. Private-sector segregation is different. My rationalization is that the treament of blacks from the 1600s through the 1950s was so awful, and the states showed so little desire to stop it, that an otherwise-unwarranted excersize of federal power was justified.

  121. Gee, Akira, that’s fucking charming. I take it you don’t mean this in an ironic, puppies-in-a-blender sort of way?

  122. Oh, I forgot — Akira, every consider that being pro-murder is one reason girls don’t like you?

  123. Akira,
    A neutered Federal Government very well could lead to a few states with virtual dictatorships. But I far prefer that to a Federal Dictatorship. With 50 states, the marketplace of ideas would push the free market libertarian model to the top, and the statist governments to the bottom (just as it does in the world at large). If the voters of Louisiana wanted to restore the Bonapartes, they’d probably soon find themselves short on citizens.

  124. Akira, every consider that being pro-murder is one reason girls don’t like you?

    I usually don’t bring it up until at least the third date. That is, I would if I could get a first one.

    All the more reason to be pro-prostitution. Courtesans don’t usually make your political views a prerequsite for fucking.

  125. “If the voters of Louisiana wanted to restore the Bonapartes, they’d probably soon find themselves short on citizens.”

    If they’d allow them to leave that is. Totalitarian societies tend to be rather touchy about people using their pedal franchise.

  126. Roe vs. Wade might have made more sense if it had been decided based on property vs. privacy issues.

    Does abortion kill? I wasn’t dead for nine months inside my mother before I was born, so I say yes. The real question would be “Does abortion kill or murder?” That depends on the circumstance. What if a fetus developed a defect that would kill it before it was born? Wouldn’t an abortion be a mercy killing?

  127. I don’t think any of them would have stood for the notion that women folk should be allowed to vote.

    Aaron Burr was not a founder but he was close by. His writings and speeches indicate that he favored female suffrage.

    Also, George Mason walked out of the Constitutional Convention because they refused to discuss abolition. He went home to VA and he his plantation full of slaves. Well, he wasn’t perfect.

    Another contemporary plantation owner in VA, whose name I cannot recall, did free his slaves and deed to them pieces of his property. Some of their descendants still live on their properties. Some say he was less motivated by conscience as he was by the trouble he had to go to to manage slaves.

    While it’s true that slavery had widespread acceptance (it was legal in nearly all the colonies) there was still a debate going on about it even at that early date.

  128. Gaius, could you please clarify how Kelo fits your idea of Scalia’s constructionism? I could kind of see how his concurrence in Raich is an example of this ideology. However, in Kelo, this type of constructionism would seem to support the majority.

  129. I agree pretty much with what James Anderson Merritt said at 2:49 pm. I don’t think it’s at all unreasonable to find an individual right to control one’s own body among the unenumerated rights of the 9th Amendment.

    A law against abortion would be a civil liberties nightmare for women of child-bearing age, whether or not they seek abortions. The existence of RU-486 would turn the enforcement of an anti-abortion law into another drug war. If you think the current drug war is bad for civil liberties, imagine the lengths to which governments would go to enforce a law that, in the minds of its proponents, would not just criminalize consensual behavior, but would have the added justification of protecting innocent fetal “life.”

  130. No need to pull rights out of thin air. We have Amendments IX and X to cover any rights left out of the Constitution.

    The Constitution is not a grant of Rights. It is a limitation on Government.

  131. mr bachwards, i would say that kelo can be seen superficially as an expansion of the means of taking for the majority from the minority.

    but the dissent to which scalia joined reads

    The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed.

    and further

    Petitioners are not hold-outs; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC’s proposed use for their confiscated property is not a “public” one for purposes of the Fifth Amendment.

    in other words, the actions of new london were not vox populi nor in the majoritarian “public” interest. had NLDC consisted of elected officers, or the project had some more definable public benefit beyond economic development — even if it had remained essentially a for-profit project — i wonder if scalia would have dissented. while the dissent later reads

    Government may compel an individual to forfeit her property for the public’s use, but not for the benefit of another private person.

    it also acknowledges that

    Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See, e.g., Berman v. Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984).

    in other words, the libertarian ideological purity has long since been scrapped out of settled law vis-a-vis eminent domain, and it’s simply a matter of drawing lines regarding “public harm”. i’m certain, in fact, that scalia would have vigorously assented to both berman and midkiff — it is telling, i think, that scalia did not join thomas in his dissent which attacked both as the product of “two misguided lines of precedent”.

    thomas’ dissent, fwiw, is almost devoid of legal value, as can be seen in his concluding paragraph

    The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. … When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.

    this is revisionist revolutionism at its worst — as i said above, the idea that there ever was a fixed, final, unchanging and holy meaning to the writ — to which only the constructionists are privy, of course — is as ridiculous and misguided understanding of the institutional process that is the bedrock of law and order as is possible to maintain.

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