seacoaster wrote: ↑Tue Sep 22, 2020 1:35 pm
ggait wrote: ↑Tue Sep 22, 2020 1:20 pm
WRITE THE FN LAW THEN VOTE ON IT. INSTEAD OF TRYING TO DESTROY THE CONSTITUTION AND THE CULTURE JUST SO YOU CAN KILL BABIES.
I agree. But be careful what you wish for.
Like RBG, I think Roe v. Wade was bad law,** and even worse public policy. RvW has been a political albatross for the Dems for 50 years and a boon to the GOP -- enabling them to talk the pro life talk without having to walk the walk.
Worst thing for the GOP would be for RvW to be over-turned. The GOP and their realpolitik justices know better than to go there. Because (with strong majorities in favor of legal abortion) the blow back would be unbearable. TBD if future justice Barrett is smart enough to continue the current course -- leave RvW nominally on the books as "precedent", but practically over-rule it with incremental death by a thousand cuts as allowed by Casey v. PP.
IMO, would have been better to just let the politics play out. Abortion (and guns) would of course still be available across the country, but to differing degrees. Utah -- few abortions; more guns. CA -- more abortions; fewer guns.
Would have been soooooo much easier and productive for pro choice advocates to organize and raise money to help women in the Utahs get the contraception and abortion services that are not easily available locally. George Soros could pay for that out of his couch cushion change. And the GOP would actually have to own the consequences of their stated agenda.
**Heller v. DC is equally bad law. An activist judge making stuff up and over-reaching in order to reach the desired policy outcome. EXACTLY the same thing as Roe v. wade. EXACTLY. Both have to be wrong or right -- it can't be one and one.
P.S. In the future, the GOP will increasingly exercise its shrinking power through activist judging. They increasingly have to cling to those pieces of our system that allow a motivated minority to defeat the growing majority -- vote suppression, gerrymandering, the Electoral College (at least until TX goes blue), federal courts, and rurally over-weighted the U.S. Senate (KS gets two; CA gets two). The Senate/SCOTUS alliance is a cornerstone.
+1. Good post, falling on a few sets of deaf ears.
I agree it is a good post, but I am going to respectfully dissent in part.
I think Ginsburg agreed with the result in a Roe, but not the rationale. Roe is largely premised on the constitutional right to privacy. I think Ginsburg thought it should have been based on equal protection, that is, the law should give women the same right to control their bodies as it gives men. What other laws were there that dictated to men what they could do with their bodies?
Interestingly to me, it does not appear that Ginsburg was involved in Roe even though she was a leading women’s rights advocate at the time. I wonder why that is.
I agree with Ginsburg that equal protection would have been a better rationale for Roe, and also with her that the result is correct constitutionally.
I think Heller is an entirely different case. In that one, Scalia invented an individual constitutional right out of whole cloth that didn’t exist, and had never existed, since the constitution was first ratified.
Stevens’ dissent exquisitely spells out in detail the reasons why Scalia was wrong.
To me, the most common sense and logical reason the second amendment does not apply to individual gun ownership is that back in the late 1700s, no one thought the citizens’ “right” to bear arms needed protection in the constitution. It was simply assumed that everyone could own a gun. No need to put it in the constitution.
Well, times changed and society’s views of gun ownership changed so that that fundamental societal understanding from over 200 years ago no longer applied. Restricting and even forbidding gun ownership became more popular in certain areas. Legislatures passed laws.
Those favoring gun rights pushed back. When they lost out in state legislatures, some “genius” decided to make a second amendment argument. Scalia, a noted gun enthusiast though a subpar marksman, lapped up the argument like a kitten attacking a bowl of milk. He was able to persuade four other justices and Heller was the result.
Scalia claimed to be an originalist. But his decisions were as outcome determinative as those of the most liberal justices. He interpreted the second amendment to include an individual right that was never intended by the framers to be in the constitution. A true originalist would never have done that.
A footnote to history is that if Al Gore had become president in 2001, and had he been reelected in 2004, he would have appointed the two justices who turned out to be Roberts and Alito, both of whom were in the majority in Heller. So if Gore had been president, Heller likely would’ve been decided the other way.
Will the court overrule Heller down the road? Maybe, but I don’t forsee that happening unless the Dems end up packing the court.
