Scalia: Abortion, death penalty "easy" cases

[BroomWagon]

I believe “Atlantic Magazine” is a very long time magazine originating in Boston… many of us grew up with it. It’s probably primary for many to think “that’s a liberal magazine” and that may well be a correct assumption in general at least, I believe the magazine likes to bill themselves as a thinking reader’s magazine.

However, over and over I commend Megan McArdle, former writer and editor for Atlantic magazine who has written a number of pro-life pieces. From what I know, her stances have been admirable.

theatlantic.com/business/archive/2009/06/a-really-long-post-about-abortion-and-reasoning-by-historical-analogy-that-is-going-to-make-virtually-all-of-my-readers-very-angry-at-me/18607/

In this article, Megan talks about the analogy that has long been made by some pro-lifers, about how slavery was once legal in the USA as well.

But in this case, I think the analogy to slavery is important, for two reasons. First of all, it was the last time we had an extended, society-wide debate about personhood. And second of all, as now, there were structural political reasons that it was much harder–nearly impossible–to change slavery through the existing political process.

Listening to the debates about abortion, it seems to me that really broad swathes of the pro-choice movement seem to genuinely not understand that this is a debate about personhood, which is why you get moronic statements like “If you think abortions are wrong, don’t have one!” If you think a fetus is a person, it is not useful to be told that you, personally, are not required to commit murder, as long as you leave the neighbors alone while they do it.

 

[BroomWagon]

The Constitution Limits the power of government.

Therefore, if the Constitution doesn’t give the government the power to ban abortions, then they can’t.

Scalia says the Federal Government can not ban it, because abortion isn’t mentioned in the Constitution.

It’s the opinion of people in this thread, this means that the states can ban it, which they did.

However, if Roe V Wade were to be overturned, it would go back to the states. And the first state to ban abortion, would once again be challenged and it would be brought back to the SCOTUS and because the government has not been given the power to ban abortion, the state law would probably be overturned once again.

Again, it will all come back to the right of privacy.

Now, an amendment to define a fetus as a human being with protection under the Constitution, then abortion can and should be banned.

But don’t hold your breath waiting for such a Constitutional Amendment on this point.

Jim

Right, you do present basically the same argument for Slavery, it wasn’t specifically mentioned in the Constitution at that time, we had a war and millions die over it.

And don’t be surprised if we see a Conservative rise to power vs. the forecast you are projecting.

theatlantic.com/business/archive/2009/06/a-really-long-post-about-abortion-and-reasoning-by-historical-analogy-that-is-going-to-make-virtually-all-of-my-readers-very-angry-at-me/18607/

By the way, States have done all kinds of things to slow abortion down. So though the Supreme Court ruled one way back then, there is not a universal law governing abortion in the US.

 

[JimR-OCDS]

From the OP article

As he[Saclia] has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty.

So, elected officials have been keeping abortion legal, according to Scalia’s preference.

But because Roe V Wade made banning abortion by the state un-Constitutional, no law make attempts to ban it.

Jim

 

[Trader]

He says there’s nothing in the Constitution about abortion.

Therefore, under the protection of the US Constitution, which all Americans live by, can not prohibit women from obtaining abortions if that’s what they desire.

The state can not pass laws that are unconstitutional. If the Constitution doesn’t give the state the power to do it, they don’t have it, even at the state level.

This is the way I’m understanding Scalia’s words and it’s not my support for abortion by any means.

Jim

You have it backwards again. The US Constitution limits the powers of the federal government, not the States, unless specified. The enumerated powers delegated to the federal government came from the States. The states gave up the power to wage war, coin money, and negotiate treaties with foreign governments. The states did not give up their police powers.

In fact, the 10th amendment spells it out:

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.

 

[JimR-OCDS]

Right, you do present basically the same argument for Slavery, it wasn’t specifically mentioned in the Constitution at that time, we had a war and millions die over it.

And don’t be surprised if we see a Conservative rise to power vs. the forecast you are projecting.

theatlantic.com/business/archive/2009/06/a-really-long-post-about-abortion-and-reasoning-by-historical-analogy-that-is-going-to-make-virtually-all-of-my-readers-very-angry-at-me/18607/

By the way, States have done all kinds of things to slow abortion down. So though the Supreme Court ruled one way back then, there is not a universal law governing abortion in the US.

Except that blacks are human beings and the Constitution does in fact, protect the rights of all human beings.

Now, the Constitution should also protect the life of an unborn human being, but the problem is that too many people in the US, don’t consider a fertilized egg as a human being.

Therefore, the majority of American people prefer to keep abortion legal, but with restrictions and most oppose abortions after viability, except to save the life of the mother.

This is the political reality we live in.

Not my choice but it’s the way it is, and until the minds and hearts of the American people can be changed, it will remain as is.

Jim

 

[JimR-OCDS]

Trader

You have it backwards again. The US Constitution limits the powers of the federal government, not the States, unless specified.

Oh but it does limit the states power when a state law infringes on the rights of the person.

The argument that it doesn’t was used by the slave states.

Jim

 

[BroomWagon]

Except that blacks are human beings and the Constitution does in fact, protect the rights of all human beings.

Remember, the Supreme Court originally ruled in Dredd Scott that a slave was 3/5ths of a human being. So per the Courts, a slave was NOT a full human being.

Now, the Constitution should also protect the life of an unborn human being, but the problem is that too many people in the US, don’t consider a fertilized egg as a human being.

Okay, so you are saying they are human beings. However, if Utah or Mississippi want to ban abortion, I do think that is there right.

The Constitution outlines duties of the federal government, to have a strong national defense as an example.

Therefore, the majority of American people prefer to keep abortion legal, but with restrictions and most oppose abortions after viability, except to save the life of the mother.

Or many people want abortion ILLEGAL except for cases to save the life of the mother, incest, rape and other conditions.

This is the political reality we live in.

In Massachusetts I assume. All States should not have to live with that ‘political reality.’

Georgia, Arizona should not have to have the same laws and they don’t per abortion.

Not my choice but it’s the way it is, and until the minds and hearts of the American people can be changed, it will remain as is.

Jim

Just as Slavery existed in this country for 300 years and then another 100 years of basic struggles for equal rights as well with what went on in the 1960s.

 

[Trader]

Right, you do present basically the same argument for Slavery, it wasn’t specifically mentioned in the Constitution at that time, we had a war and millions die over it.

And don’t be surprised if we see a Conservative rise to power vs. the forecast you are projecting.

theatlantic.com/business/archive/2009/06/a-really-long-post-about-abortion-and-reasoning-by-historical-analogy-that-is-going-to-make-virtually-all-of-my-readers-very-angry-at-me/18607/

By the way, States have done all kinds of things to slow abortion down. So though the Supreme Court ruled one way back then, there is not a universal law governing abortion in the US.

I was all ready to say you were wrong on this until I actually read the Constitution again. It clearly refers to slaves, and recognizes that slavery existed in some states, but does not use the word in Article 1, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

Although the Constitution refers to slaves as “other Persons”, Chief Justice Taney, in the Dred Scot decision found Mr Scot to be not a person. It took a civil war, 500,000 battlefield deaths, and three amendments to the Constitution to fix that decision. Roe v Wade has even more in common with Dred Scot than I thought.

 

[BroomWagon]

Right, if one were to really argue this, one would need to “really” study the different facets.

Some are now coming out and saying the Founding Fathers were actually against abortion, they say that it really was an issue back in that time as well.

One of the sources of both Wilson’s and Bouvier’s opinion is William Blackstone’s widely read Commentaries on the Laws of England (1765-1769). Blackstone’s discussion of the quickening observes: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb… this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor…"

lifeissues.net/writers/tay/tay_03foundingfather.html

So I’m sure if I websearch “abortion unconsitutional” one will find references.

It’s also easy for me to confuse it with the DOI (Declaration of Independence) which as mentioned Lincoln uses in the Gettysburg address and Martin Luther King later used in the civil rights movement that “all men are created equal”.

**“Life, **Liberty and the pursuit of happiness” is also in the DOI.

So, sometimes this comes down to the way one wants to interpret the Constitution but if we interpret it trying to put ourselves in the shoes of the founding fathers, who knows what we might get.

At the same time, I think it is wrong to divorce the Constitution from the signers and just place it in a secular understanding.

John Adams said: "“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

And of course, these are points of controversy in general as people will roll out things say James Madison or Jefferson said.

 

[Trader]

Trader

Oh but it does limit the states power when a state law infringes on the rights of the person.

Jim

Rowe v Wade depends on the right to privacy, which is not mentioned in the Constitution, and finding it superior to the right to life for the unborn child.

Trader

The argument that it doesn’t was used by the slave states.

Jim

In Dred Scot, that argument was confirmed by the Supreme Court.

Either Roe v Wade and Dred Scot were both wrong, or they were both right. Both deny the personhood of some human beings. Only the error of Dred Scot has been fixed so far, and Roe v Wade has had 100 times as many casualties so far.

 

[rlg94086]

The Constitution Limits the power of government.

Therefore, if the Constitution doesn’t give the government the power to ban abortions, then they can’t.

Scalia says the Federal Government can not ban it, because abortion isn’t mentioned in the Constitution.

It’s the opinion of people in this thread, this means that the states can ban it, which they did.

However, if Roe V Wade were to be overturned, it would go back to the states. And the first state to ban abortion, would once again be challenged and it would be brought back to the SCOTUS and** because the government has not been given the power to ban abortion, the state law would probably be overturned once again**.

Again, it will all come back to the right of privacy.

Now, an amendment to define a fetus as a human being with protection under the Constitution, then abortion can and should be banned.

But don’t hold your breath waiting for such a Constitutional Amendment on this point.

Jim

Your errorr is bolded above. The Constitution doesn’t give powers. It limits powers. Abortion and the death penalty are matters for the states. They have the power to allow, limit or ban. There is no “right of privacy” in the Constitution that should prevent the states from using this power. That is why Roe v Wad was wrongly decided. That is Scalia’s point.

 

[rlg94086]

From the OP article

So, elected officials have been keeping abortion legal, according to Scalia’s preference.

But because Roe V Wade made banning abortion by the state un-Constitutional, no law make attempts to ban it.

Jim

Again, that is Scalia’s point. Roe v Wade was poorly decided. Elected officials can pass laws, and they can amend the Constitution. That is the only way to limit and/or ban abortion. The SCOTUS does not have that ability, according to the Constitution.

 

[JimR-OCDS]

BroomWagon

Remember, the Supreme Court originally ruled in Dredd Scott that a slave was 3/5ths of a human being. So per the Courts, a slave was NOT a full human being.

No, that wasn’t the Dread Scott Decision. The Dread Scott decision was that he was not a citizen, and therefore not protected under the constitution.

The 3/5s of a Human Being was an amendment added to the Constitution, as a compromise. The pro-slave states wanted to gain more seats in Congress, so sought to count slaves as part of their populations. The Anti-Slave states didn’t want to count them at all, and not give the slave states more power. The compromise was that slaves would be counted as 3/5’s of a person. Slaves would’ve been better served had they not been counted at all.

Okay, so you are saying they are human beings. However, if Utah or Mississippi want to ban abortion, I do think that is there right.

I do to. I think there should be a Constitutional amendment making the unborn protected human beings.

The Constitution outlines duties of the federal government, to have a strong national defense as an example.

It outlines the role of government, but also limits the government in it’s power of basic human rights seen by the founders. Free speech and freedom of religion prevent the government from making laws with respect to religion and prohibit the government from punishing people for what they say against the government.

Just as Slavery existed in this country for 300 years and then another 100 years of basic struggles for equal rights as well with what went on in the 1960s.

Slave States believed that slavery was a state right, just as they saw other laws that segregated blacks and kept them from voting were states rights.

But where they? Were those laws not un-Constitutional ?

Did we really need a Civil Rights Act to acknowledge that ?

Jim

 

[Trader]

BroomWagon

No, that wasn’t the Dread Scott Decision. The Dread Scott decision was that he was not a citizen, and therefore not protected under the constitution.

The 3/5s of a Human Being was an amendment added to the Constitution, as a compromise. The pro-slave states wanted to gain more seats in Congress, so sought to count slaves as part of their populations. The Anti-Slave states didn’t want to count them at all, and not give the slave states more power. The compromise was that slaves would be counted as 3/5’s of a person. Slaves would’ve been better served had they not been counted at all.

Jim

We are getting a lot of legal terms mixed up here. While I am, by the grace of God, not a lawyer, I did pass the required exam on the Constitutions of the United States and Illinois in order to graduate high school, and successfully completed two semesters of Constitutional History in college. The course was mainly for pre-law students, but I took it as part of the history department. This was before Rowe v Wade and Dred Scott was considered the worst SC decision up to that time.

Article 1, Section 2:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

This was a compromise, but it was part of the original Constitution, not an amendment. It only says that for purposes of representation in the House of Representatives and for direct taxes, Persons other than free Persons, shall be counted as three fifths of a person.

Logically, it is not possible to be 3/5 of a human being. You are either human or not. Not all human beings have the same rights. A sixteen year old cannot vote. A ten year old cannot marry or contract to buy a car. Until recently no one thought that a man could marry another man.

Dred Scott v. Sandford denied Mr Scott the right to sue in federal court because he was not a citizen. Chief Justice Taney went on to decide other issues that should have not been ruled on, since the Court had already ruled the suit should be dismissed. In ruling that Congress had no power to bar slavery in the territories and invalidating the Missouri Compromise, he precipitated the Panic of 1857 and made the Civil War all but inevitable.

Here is the actual text of the decision:
memory.loc.gov/cgi-bin/query/r?ammem/llstfield(DOCID+@lit(llst020div1

In yet another example showing that judges and fractions do not mix, in Rowe v Wade the court invented the concept of trimesters in pregnancy that allowed different levels of a State’s right to regulate or ban abortion. It was a compromise not based on anything in the Constitution.

 

[rlg94086]

We are getting a lot of legal terms mixed up here. While I am, by the grace of God, not a lawyer, I did pass the required exam on the Constitutions of the United States and Illinois in order to graduate high school, and successfully completed two semesters of Constitutional History in college. The course was mainly for pre-law students, but I took it as part of the history department. This was before Rowe v Wade and Dred Scott was considered the worst SC decision up to that time.

Article 1, Section 2:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

This was a compromise, but it was part of the original Constitution, not an amendment. It only says that for purposes of representation in the House of Representatives and for direct taxes, Persons other than free Persons, shall be counted as three fifths of a person.

Logically, it is not possible to be 3/5 of a human being. You are either human or not. Not all human beings have the same rights. A sixteen year old cannot vote. A ten year old cannot marry or contract to buy a car. Until recently no one thought that a man could marry another man.

Dred Scott v. Sandford denied Mr Scott the right to sue in federal court because he was not a citizen. Chief Justice Taney went on to decide other issues that should have not been ruled on, since the Court had already ruled the suit should be dismissed. In ruling that Congress had no power to bar slavery in the territories and invalidating the Missouri Compromise, he precipitated the Panic of 1857 and made the Civil War all but inevitable.

Here is the actual text of the decision:
memory.loc.gov/cgi-bin/query/r?ammem/llstfield(DOCID+@lit(llst020div1

In yet another example showing that judges and fractions do not mix, in Rowe v Wade the court invented the concept of trimesters in pregnancy that allowed different levels of a State’s right to regulate or ban abortion. It was a compromise not based on anything in the Constitution.

Very, very well said. The 3/5 compromise had nothing to do with the framers believing that slaves were 3/5 human. In fact, it was the anti-slave side of the argument that pushed for the 3/5 compromise. Why? Because the slave-owners wanted to have it both ways. They certainly didn’t want slaves to have a right to vote, but they wanted to count them as 1 person for apportioning of representatives.

Also, I like your point about trimesters. I hadn’t thought about it before. There is nothing magical or biological about trimesters when it comes to the value of a human being.

 

[JimR-OCDS]

Very, very well said. The 3/5 compromise had nothing to do with the framers believing that slaves were 3/5 human. In fact, it was the anti-slave side of the argument that pushed for the 3/5 compromise. Why? Because the slave-owners wanted to have it both ways. They certainly didn’t want slaves to have a right to vote, but they wanted to count them as 1 person for apportioning of representatives.

Also, I like your point about trimesters. I hadn’t thought about it before. There is nothing magical or biological about trimesters when it comes to the value of a human being.

And pretty much as I posted. The 3/5’s had nothing to do with slave owners believing that they were 3/5 of a human being.

The anti-slave states wanted the slaves not to be counted at all, because it would add more seats in house of representatives for the pro-slave states.

The slaves would’ve been better served if they weren’t counted at all, but in the debate between the anti-slave states and pro-slaves states resulted in a compromised with counting slaves being counted as 3/5 in their census.

But Dread Scott was decided on the basis that he was not a citizen and not because he was counted only as 3/5 of a human being.

Jim

 

[sedonaman]

I don’t see much brilliance in a judge which very publicly declares that he’s already decided cases before he’s even heard the opening arguments. Hello Bar Association.

That’s because you don’t understand that he starts with the constitution; others, namely the liberal element, start with the issue and work back to the constitution. So in the case of Roe v Wade, for example, the pro-abortion side worked back and found a right to privacy to justify abortion. What Scalia says is that if it is not mentioned in the constitution, the courts should not mention it either [IOW, not make new law]; it should be left to the people through their elected representatives [now there’s a novel idea].

What your argument boils down to is that in our system, everyone gets a vote, and the vote of the masses is likely to prevail over that of the “enlightened” intelligentsia, and we can’t allow that to happen because it makes social innovation more difficult since more than nine judges have to be convinced of the need for change. :sad_yes:

 

[Sir_Catholic]

I thought back in 2005 that Scalia should have been nomiated for Chief Justice when Rehnquist died. He certainly has the intellect for the job.

 

[scipio337]

Did you know his son is a priest! Gotta love that!

True! A Virginia church.

http://www.stjohncatholicmclean.org/church/photogallery/Scalia_thumb.jpg

stjohncatholicmclean.org/church/aa.shtml

catholicnewsagency.com/news/catholics-urged-to-imitate-st.-thomas-more-in-contraception-battle

It’s refreshing to see someone who has such deeply founded principals regarding our Constitution, rather than “it’s written on toilet paper, we can make it mean what we want”.

 

[seekerz]

I just don’t get all this waxing poetic about the (apparently) infallible Constitution. It is a very valuable document drawn up by very fallible human beings who got some things right and some wrong. Life is about figuring things out - not about ceding the power to do so to people long dead.