Philip P:
There does not seem to be anything giving the AG the ability to make the determination as to waht constitutes “legitimate medical pupose,”
The act does not define what “legitimate medical purpose” is. If it did, then the ruling would be unanimous in one way or another (unless the justices were prepared to rule or advise that the act was unconstitutional – I personally do not believe judicial review legitimately extends beyond the realm of civil justice (including “criminal law”) administered by the courts – so for instance a ruling that a sentencing law is unconstitional would be an effectual one whereas a ruling that an appropriation bill is inconstitutional would not be effectual as that ruling is itself unconstitunal hopefully as judged by the legislature in defense of her own constitutional rights – but the legislature can choose to take such rulings as being advisory in nature and defer to them in that way – just as the court can choose to take legislative fact finding as advisory and defer to them in the court’s decision making except in unusual circumstances)
Now given that the act does not define it, it by default leaves the executive to define it. It certainly does not leave the judiciary to define it – that would be a case of judges making law. In some systems of govt, judges do make law. Not in ours, or at least it is not supposed to work that way.
I suppose a case could be made that a court can overturn the definition given it by an executive should that definition be one that no reasonable person could hold. But I do not see how any reasonable person, judge or justice, could hold to such a position.
My problem with Scalia’s reasoning is this idea of objective criteria. That’s fine within a community of shared values (e.g. Catholicism, with its magisterium and natural law). In a diverse,
What you seem to fail to realize is that natural law is that very thing which any human community has or ought to have as “shared values.” By framing the discussion in terms of “values” instead of “virtues” you are presenting morality from the outset as something determined merely by subjective whim. The concept of natural law rather is that certain moral truths are embedded within humanity, within the nature of man, and the nature of creation, and that therefore these moral truths can be known, in principle, through the light of natural reason, without any recourse to revelation or “Catholicism”
To argue against this, one must actually argue that such a thing, natural law, does not exist. It does not suffice to say that some do not believe in it or that men differ as to the finer points of the natural law. For the fact that a tiny minority of men may not believe it exists and the fact that many – even within Catholicism – disagree as to the finer points of the natural law, does not at all address the central claim of natural law proponents nor of their central claim as to how natural law ought interact with civil justice – and for that matter with society in general, including the legislative and executive and the whole public square.
Your presenting the matter from your own point of view – a subjectivist one – does not counter or rebut their point of view; it merely presents your own in a positive way.
not conservative in the limited power, state’s rights way
Perhaps those who describe themselves as “conservative” ought be able to define for themselves what that means. Also, perhaps we ought not pigeon hole people as either “conservative” or “liberal” and see how individual people are at variance with our pre-definied pigeon hole categories.
Human thought in general, and in this area in particular, is so complex that it is folly to assume that there are somehow 2 centers of thought and that all legal minds somehow congregate around one or the other. On many legal issues indeed there are not 2, but 3 or even 4 distinct positions. Even within a particular school of legal thought – for instance “originalism” – there are at least 2 or 3 distinct forms of originalism. Even within a particular society such as the Federalist Society, there are at least 3 or 4 ideas that become central to one’s political or legal views. Even within the conservative side of American politics, there are at least 4 or 5 centers of conservative thought with some of these even denying the appelation of conservative to the others – and these schools of thought have names, either self-applied or applied by others: theoconservative, neoconservative. paleoconservative, etc.
Thus what you have done here is to essentially criticize not any internal inconsistency of legal belief by any justice but the inconsistency between their legal belief and your pigeon hole category! That far from being something a Justice should be ashamed of is something a Justice should be
proud of
