Curious Case Of SCOTUS.

[osan]

How is it that SCOTUS decides one case based on principle (Roe), yet another (NYS licensing scheme) on "text and tradition"?

What in hell goes on inside those skulls? Principle is all that matters. Lynching used to be tradition for southern Democrats, yet I can no longer gather me up a bunch o'negroes and have me a fine old-timey hangin'.

The inconsistency of these people underscores the tenuous nature of our liberties when they are placed in the hands of strangers whose abilities and allegiances all stand in deep question.

[jmdrake]

How is it that SCOTUS decides one case based on principle (Roe), yet another (NYS licensing scheme) on "text and tradition"?

What in hell goes on inside those skulls? Principle is all that matters. Lynching used to be tradition for southern Democrats, yet I can no longer gather me up a bunch o'negroes and have me a fine old-timey hangin'.

The inconsistency of these people underscores the tenuous nature of our liberties when they are placed in the hands of strangers whose abilities and allegiances all stand in deep question.

Both decisions were based on principle and textualism. There is not right to an abortion written into the constitution. There is an individual right to bear arms written into the constitution. Really, the gun issue was decided back in 2008. I'm surprised it took this long to strike down New York's gun law.

[osan]

Both decisions were based on principle and textualism. There is not right to an abortion written into the constitution. There is an individual right to bear arms written into the constitution. Really, the gun issue was decided back in 2008. I'm surprised it took this long to strike down New York's gun law.

Validity turns on the precise meaning of "textualism". As for tradition, that should have no part of such decisions.

[Matt4Liberty]

Both decisions were based on principle and textualism. There is not right to an abortion written into the constitution. There is an individual right to bear arms written into the constitution. Really, the gun issue was decided back in 2008. I'm surprised it took this long to strike down New York's gun law.

This is exactly it. People are trying to play mental gymnastics to make gun confiscation a state's rights issue. States don't have the right to overrule the Constitution, period. The second amendment is absolute, and Thursday's ruling didn't go far enough.

Abortion on the other hand isn't mentioned in the Constitution. That makes it a state's rights issue via the tenth amendment. If the leftist abortionists want a Constitutional right to for abortion, than they need an amendment to do it. The 14th amendment argument is so bogus. A person has just as much "right to privacy" in their home as a woman has in her womb. Can you legal kill people in your home?

[Swordsmyth]

Validity turns on the precise meaning of "textualism". As for tradition, that should have no part of such decisions.

It does have to do with an originalist interpretation of the text instead a using altered modern meanings.

[Swordsmyth]

This is exactly it. People are trying to play mental gymnastics to make gun confiscation a state's rights issue. States don't have the right to overrule the Constitution, period. The second amendment is absolute, and Thursday's ruling didn't go far enough.

Abortion on the other hand isn't mentioned in the Constitution. That makes it a state's rights issue via the tenth amendment. If the leftist abortionists want a Constitutional right to for abortion, than they need an amendment to do it. The 14th amendment argument is so bogus. A person has just as much "right to privacy" in their home as a woman has in her womb. Can you legal kill people in your home?

Well said.

[osan]

It does have to do with an originalist interpretation of the text instead a using altered modern meanings.

If that be the case, and all else equal, then I would deem it a valid standard. But the yammer about "tradition" is idiotic on its face. Were I a justice and had allowed those flying things escape my yap, I'd resign on the spot for sheer shame and wear a paper bag over my head for the rest of my life, even in the house.

[acptulsa]

..

[osan]

This is exactly it. People are trying to play mental gymnastics to make gun confiscation a state's rights issue. States don't have the right to overrule the Constitution, period. The second amendment is absolute, and Thursday's ruling didn't go far enough.

They never go far enough where the right thing is concerned.

Abortion on the other hand isn't mentioned in the Constitution

But it is - by implication. 9A protects ALL rights in clear and unmistakable language. IMO, an early 1T termination is regrettable. People should be better in control of their behavior than what we typically see, but $#@! does happen even for the responsible. All else equal, however, waiting until one is four months in to decide clearly seems outside the metes of one's personal prerogative. That we as humans are so degenerated that we feel the need to have to resort to such measures is the real problem. Fix that and the rest resolves without dangerous outside interferences in the lives of freemen.

That makes it a state's rights issue via the tenth amendment

A couple things. Firstly, what you wrote here underscores and nails shut the lid on Tenth Amendment as cancer. There is NO SUCH THING as "states' rights" because there are no such things as states, in sé. Remove humans and anything that might be deemed "state" disappears as if by magic or high-order thermonuclear detonation. It is a bull$#@! amendment that represents a pinnacle of pooching by the Framers, and should be stricken. The Ninth is perhaps the preeminent element of the BoR because it shorthands that which is normatively and provably absolute in its correctness: human freedom is absolute with the single restrictive proviso that one respect the equally valid claims of his fellows. In this, the English whom I tend to find otherwise so despicable, had it perfectly right when Commonlaw was codified with but three almost childishly simple seeming tenets:

1. Be good for your word
2. Do no harm
3. Make whole those whom you damage

This is the very embodiment of the Golden Rule, which is the only law humanity needs for peaceable prosperous life.

Secondly, I would argue that the 9A does indeed protect a right to terminate pregnancy, WITHIN LIMITS. Sadly, God architected the process of building new human beings in a way that makes the willful termination of pregnancy an inherently VERY thorny question. I have no problem with a woman using contraceptives and little where RU486 is concerned... TO A POINT. Where that point rests is where we find the buggerer of clean and clearly sound reason. Ron Paul made this difficulty very plain even to a dullard such as myself. At what point does the idea of an abortion pass from reluctant green light to wheel-locking red? I sure as hell do not know, but I am equally confident that while very much human, an undifferentiated cellular mass is not yet a human being. Equally certain am I that at eight months, a fetus is 100% human being, replete with bratty behavior. I am the first to admit I do not know where honor lies in this particular question, but my gut tells me that outright bans are NOT the way and that they are indeed a slippery slope evil that must be avoided for the sake of broader freedoms. Once that sort of precedent is accepted via the usual convoluted, invalid, and outright false logic typically employed to strip freemen of their rightful prerogatives, the game has in principle been lost, which is where we now stand.

SCOTUS has not served this nation particularly well. Their "tests" are generally ill-conceived and their integrity questionable on their best days, thus underscoring yet another hole in the design of the republic: forcible subjugation of the people to the whims and caprice of (now) nine justices who by virtue of their black robes and fancy titles are in point of practical fact capable of foisting any tyranny you care to name upon the American people. The 28A I cobbled up would go a very long way toward correcting the gross missteps of the Framers, but we all know that such an improvement to the Constitution has less than a zero chance of so much as being considered for introduction. The mice have taken control of guarding the cheese, so to speak.

A person has just as much "right to privacy" in their home as a woman has in her womb. Can you legal kill people in your home?

Actually, yes. If you can so artfully convince someone to come into your home, undetected by anyone else on the planet, kill them with an equal lack of outward telltale, and dispose of the corpse with even stealth, then by all means you can. That does not mean that you may, which is a wholly different issue. The proper protection of the rights of freemen perforce dictates these sorts of risks whereby occasional evil deeds shall go undetected and thereby unpunished. The moment you attempt to justify the seemingly innocuous and reasonable peu de destruction of any right, you have in principle declared all rights null and void. I assure you that as certainly as the sun shall rise again tomorrow, there is no right that cannot be bullshitted into oblivion by clever and determined men. That is why we have all failed because the precedent of destructability was established long, long ago. We should be killing all who, in the name of the state, murder our sovereignty. But we sit, idle and cowed by ham-fisted tyrants as our rights are demolished, piecemeal. We, the people, have been the authors, guarantors, and executors of our own destruction. There is nobody else to blame but the men in the mirrors.

Proper liberty is fraught with these brands of risk and the freeman embraces it all. It is only the corrupt man who hems and haws, expecting to enjoy all the benefits of liberty without having to bear those risks and the other costs of gaining freedom and keeping it against all comers. We have failed ourselves and our posterity with unspeakable misery, and yet we remain in a position to alter the doom toward which we all currently hurl and blinding speed. We remain armed, SCOTUS having stayed the hastiness of the hand that would strip us bare. I remain devoid of any meaningful confidence that enough of us will make what advantage we might of this most recent reprieve because... well, humans.

Lastly, on the abortion question: for those who object on the basis of religion, my take is this: God put us here with all manner of generalized capabilities, and the freedom of will to make our own choices. If, as so many profess, God is the final judge and that we shall all be called upon to account for the deeds of our earthly tenures, then why not leave God to sort out those people? I do not think one can have it both ways, that God if the rightful judge of souls, yet we say "$#@! that, I'm taking over this operation." That doesn't speak well of one's faith, but of the falsity of one's claims thereto.

All that aside, I say break out the beer and popcorn because the coming days, perhaps weeks, stand to get very showy from the drama queens of the left. What I'd hope to see is in the face of their rage and the destruction they will almost certainly attempt, the good people of the relevant communities under threat will place as many of those lunatics on the slab as necessity dictates. My guess it they will calm themselves very abruptly, and almost as if by God's miracle. Hot lead at high velocity holds nearly magical powers.

Final word: anyone with a spare prayer, Luna (one of the dogs) is on very short time. Tomorrow will likely be her last day. Please ask the Big Boss to be gentle with her. She's a fine and lovely soul.`

[unknown]

Because the Supreme Fraud is a political body which was never granted the power of judicial review.

[Swordsmyth]

Because the Supreme Fraud is a political body which was never granted the power of judicial review.

So, you would have the courts rule in favor of unconstitutional laws even though the Constitution is the supreme law of the land and all laws in violation of it are null and void?

[Swordsmyth]

They never go far enough where the right thing is concerned.



But it is - by implication. 9A protects ALL rights in clear and unmistakable language. IMO, an early 1T termination is regrettable. People should be better in control of their behavior than what we typically see, but $#@! does happen even for the responsible. All else equal, however, waiting until one is four months in to decide clearly seems outside the metes of one's personal prerogative. That we as humans are so degenerated that we feel the need to have to resort to such measures is the real problem. Fix that and the rest resolves without dangerous outside interferences in the lives of freemen.



A couple things. Firstly, what you wrote here underscores and nails shut the lid on Tenth Amendment as cancer. There is NO SUCH THING as "states' rights" because there are no such things as states, in sé. Remove humans and anything that might be deemed "state" disappears as if by magic or high-order thermonuclear detonation. It is a bull$#@! amendment that represents a pinnacle of pooching by the Framers, and should be stricken. The Ninth is perhaps the preeminent element of the BoR because it shorthands that which is normatively and provably absolute in its correctness: human freedom is absolute with the single restrictive proviso that one respect the equally valid claims of his fellows. In this, the English whom I tend to find otherwise so despicable, had it perfectly right when Commonlaw was codified with but three almost childishly simple seeming tenets:

1. Be good for your word
2. Do no harm
3. Make whole those whom you damage

This is the very embodiment of the Golden Rule, which is the only law humanity needs for peaceable prosperous life.

Secondly, I would argue that the 9A does indeed protect a right to terminate pregnancy, WITHIN LIMITS. Sadly, God architected the process of building new human beings in a way that makes the willful termination of pregnancy an inherently VERY thorny question. I have no problem with a woman using contraceptives and little where RU486 is concerned... TO A POINT. Where that point rests is where we find the buggerer of clean and clearly sound reason. Ron Paul made this difficulty very plain even to a dullard such as myself. At what point does the idea of an abortion pass from reluctant green light to wheel-locking red? I sure as hell do not know, but I am equally confident that while very much human, an undifferentiated cellular mass is not yet a human being. Equally certain am I that at eight months, a fetus is 100% human being, replete with bratty behavior. I am the first to admit I do not know where honor lies in this particular question, but my gut tells me that outright bans are NOT the way and that they are indeed a slippery slope evil that must be avoided for the sake of broader freedoms. Once that sort of precedent is accepted via the usual convoluted, invalid, and outright false logic typically employed to strip freemen of their rightful prerogatives, the game has in principle been lost, which is where we now stand.

SCOTUS has not served this nation particularly well. Their "tests" are generally ill-conceived and their integrity questionable on their best days, thus underscoring yet another hole in the design of the republic: forcible subjugation of the people to the whims and caprice of (now) nine justices who by virtue of their black robes and fancy titles are in point of practical fact capable of foisting any tyranny you care to name upon the American people. The 28A I cobbled up would go a very long way toward correcting the gross missteps of the Framers, but we all know that such an improvement to the Constitution has less than a zero chance of so much as being considered for introduction. The mice have taken control of guarding the cheese, so to speak.



Actually, yes. If you can so artfully convince someone to come into your home, undetected by anyone else on the planet, kill them with an equal lack of outward telltale, and dispose of the corpse with even stealth, then by all means you can. That does not mean that you may, which is a wholly different issue. The proper protection of the rights of freemen perforce dictates these sorts of risks whereby occasional evil deeds shall go undetected and thereby unpunished. The moment you attempt to justify the seemingly innocuous and reasonable peu de destruction of any right, you have in principle declared all rights null and void. I assure you that as certainly as the sun shall rise again tomorrow, there is no right that cannot be bullshitted into oblivion by clever and determined men. That is why we have all failed because the precedent of destructability was established long, long ago. We should be killing all who, in the name of the state, murder our sovereignty. But we sit, idle and cowed by ham-fisted tyrants as our rights are demolished, piecemeal. We, the people, have been the authors, guarantors, and executors of our own destruction. There is nobody else to blame but the men in the mirrors.

Proper liberty is fraught with these brands of risk and the freeman embraces it all. It is only the corrupt man who hems and haws, expecting to enjoy all the benefits of liberty without having to bear those risks and the other costs of gaining freedom and keeping it against all comers. We have failed ourselves and our posterity with unspeakable misery, and yet we remain in a position to alter the doom toward which we all currently hurl and blinding speed. We remain armed, SCOTUS having stayed the hastiness of the hand that would strip us bare. I remain devoid of any meaningful confidence that enough of us will make what advantage we might of this most recent reprieve because... well, humans.

Lastly, on the abortion question: for those who object on the basis of religion, my take is this: God put us here with all manner of generalized capabilities, and the freedom of will to make our own choices. If, as so many profess, God is the final judge and that we shall all be called upon to account for the deeds of our earthly tenures, then why not leave God to sort out those people? I do not think one can have it both ways, that God if the rightful judge of souls, yet we say "$#@! that, I'm taking over this operation." That doesn't speak well of one's faith, but of the falsity of one's claims thereto.

All that aside, I say break out the beer and popcorn because the coming days, perhaps weeks, stand to get very showy from the drama queens of the left. What I'd hope to see is in the face of their rage and the destruction they will almost certainly attempt, the good people of the relevant communities under threat will place as many of those lunatics on the slab as necessity dictates. My guess it they will calm themselves very abruptly, and almost as if by God's miracle. Hot lead at high velocity holds nearly magical powers.

Final word: anyone with a spare prayer, Luna (one of the dogs) is on very short time. Tomorrow will likely be her last day. Please ask the Big Boss to be gentle with her. She's a fine and lovely soul.`

I'm not going to argue with you about abortions in the 1st trimester, neither of us will have our mind changed about that.
But the 9thA is worse than useless, it is dangerous.
If you start pulling rights out of it the left will turn it into a magic wishing well that grants all their fantasies.
I understand the intent behind it but it is dysfunctional and counter productive to the idea of limited government in practice, I'm just surprised the left hasn't used it yet.
It needs to be repealed.

And "states rights" are important to limited and responsible government controlled by the locals in each state, the states may not actually have the rights but their people have a right to local control of issues not delegated to the federal government.

[Sonny Tufts]

Because the Supreme Fraud is a political body which was never granted the power of judicial review.

It was granted "the judicial power of the United States" in Article III of the Constitution. At a minimum, that includes the authority to determine the law to be applied in a given case. And that authority has to include determining whether a statute violates the Constitution.

[osan]

But the 9thA is worse than useless, it is dangerous.

I must disagree. It is the one clear statement about the free nature of men that is appropriately broad and it is absolutely necessary, especially in a world of dullardly sorts, like the Democrats.

If you start pulling rights out of it the left will turn it into a magic wishing well that grants all their fantasies.

Let us hearken back to that which defines a "right". To wit: "A valid claim." Note that when I step up to the soapbox and declare the state of North Carolina as my individual property, it does not follow that everyone must then leave the area when I tell them to do so. My claim is invalid, prima facie, and therefore I have no right to North Carolina. Perhaps I should try Utah...

The left does that wishing-well crap now, for Pete's sake. Why do you think their panties are in such a twist over the rightful execution of Roe? At some point, people like you and myownself need to step up and put the looters back into their places. But we don't. We allow them to run amok all willy-nilly for decades on end, in ever intensifying fashion, then wonder why the world has turned to feces?

If "government" is indeed BY the people, that would include us. Pimping the responsibilities off onto "professionals" gets us what we now so thoroughly enjoy in our lives: bald-faced tyranny of the worst variety - that which is slathered in a rich cocoa coating... only now they're removing the sweet and leaving the moldy, rotten insides and telling us to eat and be glad about it.

I understand the intent behind it but it is dysfunctional and counter productive to the idea of limited government in practice, I'm just surprised the left hasn't used it yet.
It needs to be repealed.

That's defeatist thinking. Were I king for a day, the Constitution would be out the window, replaced with my version. Would it make the nation better? I think it would, but it is impossible to tell, given the degraded condition in which so much of the population is to be found. At the end of the day, it's the people who matter because paper and ink are nothing more than that. Remember Franklin's quip to the woman as he strode from the bricks: "...if you can keep it." Ben knew precisely what you and the rest of us know. The quality of life in any given land turns wholly on the quality of the people. High-grade materials make for the best results. We Americans are largely turned to trash, many due to subscription to the dangerous idiocies of the "left", and the rest due to our corrupted senses of "tolerance". Why do we have abortion in third trimester? because we tolerated and caved to the whining and moaning of the left. Why do we have little boys saying they are girls? Name the perdition and the answer as to why we have it is the same: we put up with it. Nobody wants responsibility. Nobody wants to be the bad guy who takes a 2x4 and smacks the crap out of those who threaten danger. So what can we expect? Offer an inch, they take a yard. At that point, you are faced with a choice to cave or assert your own rights. We as a people have failed to do that. I have to give props to these abortionist phlegm for one thing: in the wake of the dismantling of Roe, they are out there ACTING. They are DOING. They are doing wrong, but they are doing in accord with the dictates of their consciences, such as they may be. What are "we" doing? We sit idle as Portland and Kenosha burn when we should have been there pushing back. But no. That's too vulgar and unseemly. Meanwhile, you can kiss your own ass goodbye, along with your rights.

The Constitution is crap, true, but it's what we have and if properly followed, not harmful. It's the corruptions of us all, and I mean every stinking one of us, that has resulted in what we now experience. YOU are to blame. I am to blame. Not a one of us is wholly innocent because we all participated in the passive allowance of vampires to do what they do so well, and at this point our collective goose is just about cooked.

And "states rights" are important...

How can that which is nonexistent be important? Show me a "state". That is my challenge to you. Show me a state such that I can place my physical hands upon it and know that it is "state", and now it without equivocation or the least shred of doubt. When you can do that, I will alter my stance on the matter, but not until. I will save you the trouble of trying by declaring upfront that you will never do it, because it cannot be done. But try if it please you. I will wait.

...to limited and responsible government controlled by the locals in each state, the states may not actually have the rights but their people have a right to local control of issues not delegated to the federal government.

I don't think you've thought this out quite well enough, as what you have written here is pure swiss cheese. Let us examine.

Firstly, you choose "government", which is another nonexistent entity. "Limited and responsible governANCE" would be acceptable, so far as it goes. Words are important, so choose carefully. "Controlled by the locals..." In accord with what standard? The southern Democrat standard would have them knee-grows back on the plantation, don't fool yourself, or on a boat to Africa. The standard of the New York population would force your lily-white daughter to breed with non-white because white people be RAYcis. The California standard would have everyone an outright slave, save for the elite, of course.

The whole point of the Constitution, and it was a righteous one, was that while the states held the right to govern themselves, they were limited in their prerogatives to do so along a set of very basic tenets that recognized the rights of free men above any possible claims made by a subset of a given (state) population. the intention was to establish a FREE land. Can't have freedom with tyrants at the reins.

Pardon me, but you need to cleanse your thoughts of these ridiculous constructs like "state" and "governMENT". They are wholly destructive to strong thought. There are only individual people, some of whom come together to discharge the synthetic duties of the nonexistent "state". This is purest insanity. The people of America have turned their backs to their individual responsibilities for the sake of their avaricious lassitude. They want the result without doing any work, then wonder how the manacles appeared on their ankles. Come now, let us be serious about these questions.

The ONLY way to retrieve and recover is for the people to cut the crap with "representative government" and get back to proper governANCE. This begins with governing oneself, which in turn founds upon the repudiation of all jackassery. That alone would solve 99% of all our problems. I see no problem with specialists, but they must be kept close eyes upon them and they must be beaten with deep savagery for even the least unamended trespass upon those to whom they swear their oaths of good faith and service.

We have EVERYTHING we need for prosperous, free living, yet we use almost none of the utility. That is because we don't want freedom. We want what we want and reject all else. Freedom doesn't work that way, nor does anything else, save the mind of the corrupt man. But gravity cares no whit whether we believe in it. It is fact and it will eventually work its work if we tempt fate by stepping off that tall precipice... and that is precisely what humanity is doing, so when the big splat is but seconds away, we will have no basis for surprise.

We live in misery because we choose it. You do. I do. They do. We all have the choice to kowtow, or to fight. Clearly, we are not fighting, and once again I must give props to those of the left who are out their making asses of themselves because at least they are acting to defend that which they think it theirs, albeit mistakenly. The rest of us could take a good lesson from those $#@!s because they are spanking us most shamefully in this one regard, and that shame should be scalding the hides off of us all.

So long as you wed yourself to these absurd notions such as "state", you will remain a slave to the implications of everything they represent. Abstract thought is a two edged sword with a very sharp back. It is far too easy to fall into the traps of shorthand conveniences, which to me says that they are best left aside. The "state" may hae been an abstraction of something valid at one time, but it has undergone perceptual creep such that people now actually believe that such a thing materially exists. That is pure and dangerous psychosis - utter disengagement with material reality and it will be the sticky end of us all if we do not pop our heads from our sphincters, and soon.

Make of this what you will.

[jmdrake]

I'm not going to argue with you about abortions in the 1st trimester, neither of us will have our mind changed about that.
But the 9thA is worse than useless, it is dangerous.
If you start pulling rights out of it the left will turn it into a magic wishing well that grants all their fantasies.
I understand the intent behind it but it is dysfunctional and counter productive to the idea of limited government in practice, I'm just surprised the left hasn't used it yet.
It needs to be repealed.

And "states rights" are important to limited and responsible government controlled by the locals in each state, the states may not actually have the rights but their people have a right to local control of issues not delegated to the federal government.

All U.S. states allowed 1st trimester abortions up until mid 1800s. (See: https://abortion.procon.org/history-of-abortion/) The idea was abortion was allowable until the "quickening" which is when the mother could feel the baby moving around. Of course with advances in technology we detect fetal heartbeats much sooner. (Hence Texas' fetal heartbeat bill).

As for the 9th amendment, like it or not (and I like it), it's there. I don't think it gets used ENOUGH. What right does the state, federal or local, have to tell me that I have to take a vaccine or wear a mask or whether or not I can smoke pot or hire a hooker? The broad "policing powers" of the state = a police state. The state should protect individual rights. That's why abortion is a sticky subject because at SOME point we're talking about an individual human. I do NOT believe that point is at conception. If it is then fertility clinics need to be shut down because most of those frozen embryos will never be born. But those that say "It's not a human until it sees the light of day" are misguided at best.

[osan]

Because the Supreme Fraud is a political body which was never granted the power of judicial review.

Agreed, and yet that power had to be in someone's hands... I would have included a fourth branch whose sole purpose was the determination of constitutionality. That, of course, is weak tea, but in the absence of a population fit to their freedoms, which we are not, it's about the best with which I can come up.

[Occam's Banana]

That's why abortion is a sticky subject because at SOME point we're talking about an individual human. I do NOT believe that point is at conception. If it is then fertility clinics need to be shut down because most of those frozen embryos will never be born. But those that say "It's not a human until it sees the light of day" are misguided at best.

The argument that life does not begin at conception because this would require fertility clinics to be shut down (due to the fact that most frozen embryos would never be born) is not a good one.

The "obvious" counter-argument is that if life does begin at conception, then those fertility clinics should indeed be shut down, precisely because they will end up disposing of or destroying viable embryos. IOW: Not wanting to shut down fertility clinics is not a good reason for rejecting the proposition that life begins at conception. (Making murder illegal might put contract killers out of business - or at least severely constrain the manner in which they operate - but that is not a compelling argument for legalizing murder.)

But that counter-argument is not a good one either (which is why I use quote marks when describing it as "obvious"). The problem with both the argument and the "obvious" counter-argument to it is that they each mash together and conflate two quite distinct issues. (This is a very common occurrence in debates over abortion, and it is one of the reasons abortion is such a "sticky subject".)

The first issue is "when does life begin?" and the second issue is "under what circumstances should homicide be actionable?" These are entirely separate questions. The first issue sets the stage for the second issue, but does not (and cannot) answer it.

If life begins at conception[1], then it does indeed follow that any act which results in the end of conceived life (such as disposing of or destroying viable frozen embryos) is homicide. But it does not follow that every such homicide must or should be regarded as actionable. There are many kinds and degrees of homicide: suicide, negligent homicide, accidental homicide, murder, justifiable homicide, etc. Not all of them are considered actionable - that is, not all of them are regarded as mandating preventive action prior to their occurrence ("accidents happen", after all) or as requiring the imposition of some kind of punishment after they occur (justifiable homicide in reasonable self-defense, for example). And even for those varieties of homicide that are considered actionable, the nature, kind, and severity of the action taken in response to them is not at all uniform or universal. Negligent homicide is treated less harshly than premeditated murder, for example, and (attempted) suicide less harshly still. Likewise, it seems entirely reasonable that there should be a range of responses to various kinds of "abortive" homicides, depending on circumstances and particulars. Deliberately killing a pregnant woman could be considered a double murder, while ending a pregnancy that endangers the mother's life could be considered justifiable homicide, and so on (and this could involve the modification of already existing categories of homicide, or even the establishment and recognition of new ones, if it is useful to do so).

So even if life is considered to begin at conception, it does not at all necessarily follow that "fertility clinics [would] need to be shut down because most of those frozen embryos will never be born". The first question (when does life begin?) only sets the point at which the second question (what if anything is to be done when a life is ended?) becomes relevant - but the first question does not resolve the second, because they are otherwise entirely separate issues, with the answer of neither dictating what the answer to the other must be.



[1] For the record (and the sake of full disclosure), I think that conception should be the point at which life is considered to begin. Prior to conception, there is no question of there being a human life in existence, and after conception, there is no non-arbitrary point or condition at which to assign the beginning of life. Conception is the one and only clear and distinct dividing line. But even if I thought otherwise, nothing of what I have said here would change. Regardless of what one thinks the answer to the question "when does life begin?" should be, it can only tell us when to start asking "what is to be done when life is caused to end?", but it cannot answer that question.

[jmdrake]

Good points. However I think you misunderstood my initial point. I didn't ask the question "when does life begin." I made the point that "at SOME point we're talking about an individual human." That's another way of saying "under what circumstances should homicide be actionable?" Homicide is the murder of a human being. And at the end of the day, we humans who are able to speak on the issue have to decide for those who cannot. (Similar question regarding the end of life. Those in a "persistent vegetative state" for instance cannot speak on behalf of their on humanity.) A court in these United States, without batting an eye, convicted Dr. Kermit Gosnell of murder because he killed babies that survived abortions. The fact that these babies could squirm and cry was enough for any sane juror to convict. I don't know if there was video evidence, but I can imagine if there were then the jurors would have needed psychotherapy to deal with their PTSD. On the other hand, if there was video of someone in a fertility clinic cleaning out petri dishes and "killing" hundreds more embryos, I doubt you'd get an emotional response even if the petri dishes were under a microsope. We're talking this:



Verses this:



Sorry, but there's just NO comparison between the two. Aside from the obvious visual representation, there's the fact that there is no nervous system in image 1 so no chance of those cells feeling fear or pain or love or whatever. And yes, I've heard the "It's a potential human" argument 30 years ago. Believe it or not from a friend who was pro choice at the time (as was I) who later became pro life...then went back to being pro choice based on the "pregnancy is always dangerous" argument. (That makes no sense to me but whatever).

I sincerely which people would just stop staking out the extreme positions. (No abortions after conception....abortions all the way until the baby escapes the mama death row chamber). I think most people could meet happily somewhere in between, but nobody wants to give an inch because everyone keeps looking at the extremes.

The argument that life does not begin at conception because this would require fertility clinics to be shut down (due to the fact that most frozen embryos would never be born) is not a good one.

The "obvious" counter-argument is that if life does begin at conception, then those fertility clinics should indeed be shut down, precisely because they will end up disposing of or destroying viable embryos. IOW: Not wanting to shut down fertility clinics is not a good reason for rejecting the proposition that life begins at conception. (Making murder illegal might put contract killers out of business - or at least severely constrain the manner in which they operate - but that is not a compelling argument for legalizing murder.)

But that counter-argument is not a good one either (which is why I use quote marks when describing it as "obvious"). The problem with both the argument and the "obvious" counter-argument to it is that they each mash together and conflate two quite distinct issues. (This is a very common occurrence in debates over abortion, and it is one of the reasons abortion is such a "sticky subject".)

The first issue is "when does life begin?" and the second issue is "under what circumstances should homicide be actionable?" These are entirely separate questions. The first issue sets the stage for the second issue, but does not (and cannot) answer it.

If life begins at conception[1], then it does indeed follow that any act which results in the end of conceived life (such as disposing of or destroying viable frozen embryos) is homicide. But it does not follow that every such homicide must or should be regarded as actionable. There are many kinds and degrees of homicide: suicide, negligent homicide, accidental homicide, murder, justifiable homicide, etc. Not all of them are considered actionable - that is, not all of them are regarded as mandating preventive action prior to their occurrence ("accidents happen", after all) or as requiring the imposition of some kind of punishment after they occur (justifiable homicide in reasonable self-defense, for example). And even for those varieties of homicide that are considered actionable, the nature, kind, and severity of the action taken in response to them is not at all uniform or universal. Negligent homicide is treated less harshly than premeditated murder, for example, and (attempted) suicide less harshly still. Likewise, it seems entirely reasonable that there should be a range of responses to various kinds of "abortive" homicides, depending on circumstances and particulars. Deliberately killing a pregnant woman could be considered a double murder, while ending a pregnancy that endangers the mother's life could be considered justifiable homicide, and so on (and this could involve the modification of already existing categories of homicide, or even the establishment and recognition of new ones, if it is useful to do so).

So even if life is considered to begin at conception, it does not at all necessarily follow that "fertility clinics [would] need to be shut down because most of those frozen embryos will never be born". The first question (when does life begin?) only sets the point at which the second question (what if anything is to be done when a life is ended?) becomes relevant - but the first question does not resolve the second, because they are otherwise entirely separate issues, with the answer of neither dictating what the answer to the other must be.



[1] For the record (and the sake of full disclosure), I think that conception should be the point at which life is considered to begin. Prior to conception, there is no question of there being a human life in existence, and after conception, there is no non-arbitrary point or condition at which to assign the beginning of life. Conception is the one and only clear and distinct dividing line. But even if I thought otherwise, nothing of what I have said here would change. Regardless of what one thinks the answer to the question "when does life begin?" should be, it can only tell us when to start asking "what is to be done when life is caused to end?", but it cannot answer that question.

[unknown]

It was granted "the judicial power of the United States" in Article III of the Constitution. At a minimum, that includes the authority to determine the law to be applied in a given case. And that authority has to include determining whether a statute violates the Constitution.

Their opinion was welcome.

Not the power to change the meaning (rewrite) the Constitution based on their interpretation.

[Sonny Tufts]

Their opinion was welcome.

Not the power to change the meaning (rewrite) the Constitution based on their interpretation.

One person's interpretation is another person's rewrite.

[TheTexan]

One person's interpretation is another person's rewrite. Invariably, the latter is a person who didn't like the result of the decision.

Sometimes, but more often people just do what they want and lie to everyone and say that's how they "intepreted" the constitution when they know damn well that's not what the constitution says or means.

If people are going to blatantly ignore the constitution, I'd much rather they just be honest about it, than lie about "interpreting" it this way or that way.

They may as well be honest about it anyway... it's not like anyone holds anyone accountable for their oaths to the constitution

[Sonny Tufts]

Sometimes, but more often people just do what they want and lie to everyone and say that's how they "intepreted" the constitution when they know damn well that's not what the constitution says or means.

If people are going to blatantly ignore the constitution, I'd much rather they just be honest about it, than lie about "interpreting" it this way or that way.

They may as well be honest about it anyway... it's not like anyone holds anyone accountable for their oaths to the constitution

Well, the good thing about the Justices is that they write opinions setting forth their reasoning, and anyone can read them and take potshots at them.

[TheTexan]

Well, the good thing about the Justices is that they write opinions setting forth their reasoning, and anyone can read them and take potshots at them.

The good thing about the Justices, is that they have proven themselves wholly incompetent, in such a manner that it is now both appropriate and productive to simply ignore anything that they have said.

[unknown]

One person's interpretation is another person's rewrite.

The Founders felt that the Constitution was pretty clear. They were fine with the court's "opinion", nothing binding.

Any actual changes to the Constitution were left to the states.

The Supreme Fraud made themselves the ultimate arbiters of the Constitution in Marbury v Madison.

This point should be repeated, they gave a power... to themselves.

This power was never delegated to them which is exactly why they did it. They were well aware of their Constitutional limitations.

[Sonny Tufts]

The Supreme Fraud made themselves the ultimate arbiters of the Constitution in Marbury v Madison.

They're not the ultimate arbiters. The people, through their representatives, can overturn any SCOTUS ruling on constitutional law by ratifying an amendment. The 11th, 13-15th, and 16th Amendment overruled SCOTUS decisions (Chisholm v. Georgia, Dred Scott v. Sanford, and Pollock v. Farmers Loan & Trust).

This point should be repeated, they gave a power... to themselves.

This power was never delegated to them which is exactly why they did it. They were well aware of their Constitutional limitations.

It was delegated the "Judicial power of the United States", which includes the power to determine what law applies in a given case. That's what courts do every day; they apply what they consider to be the applicable law to the facts as found by the factfinder (either a jury or the judge himself). If there's an appeal and one party complains that the law applied by the trial judge violates the Constitution, who's supposed to rule on that issue, if not the appellate courts (including SCOTUS)? We aren't talking about advisory opinions but about actual controversies between the parties, and courts are set up to rule on such controversies.

Judicial review was anticipated by the Founders. From Federalist 78:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

There is nothing "pretty clear" about things like "freedom of speech or of the press", or "due process of law". If they were so clear, all SCOTUS decisions would be unanimous, and there would be very few law review articles criticizing SCOTUS opinions.

[unknown]

the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Right, most US laws, agencies and federal government actions are unconstitutional.

The Founders discussed things which did not make it to the Constitution. As you point out, the Constitution does not delegate the power of Judicial Review to the Supreme Court.

The Justices, well aware of this fact, then proceeded to give the power to themselves.

The Founders were fine with the Court's "opinion", not rulings which have the force of law.

Not talking about other courts.

[Sonny Tufts]

As you point out, the Constitution does not delegate the power of Judicial Review to the Supreme Court.

Try again. When Hamilton in Federalist 78 said the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents, he means that if a statute violates the Constitution a court is to apply the latter. He even makes it more explicit when he says, "where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former." So in deciding a case, a court must declare a statute violating the Constitution as void, and this ruling will have the force of law not only in the actual case before it but also in any other case involving similar facts arising in the future. For example, the 1954 rulng declaring Topeka's racially segregated public schools unconstitutional didn't apply only to Topeka schools, despite what a lot of southern politicians claimed.

Tell you what -- why don't you give me an example of a case you think was wrongly decided in which the Court declared a state or federal law unconstitutional. Then give me one you think was wrongly decided in which the Court didn't declare a state or federal law unconstitutional.

[Swordsmyth]

Right, most US laws, agencies and federal government actions are unconstitutional.

The Founders discussed things which did not make it to the Constitution. As you point out, the Constitution does not delegate the power of Judicial Review to the Supreme Court.

The Justices, well aware of this fact, then proceeded to give the power to themselves.

The Founders were fine with the Court's "opinion", not rulings which have the force of law.

Not talking about other courts.

A6:
This Constitution...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Why are you fighting FOR unconstitutional laws?
What use is any part of the Constitution if judges not only are not bound by it but are forced to not apply it?

[unknown]

What do you mean?

After the SCOTUS gave itself the power of judicial review, it was now able to move forward with its intended purpose:

To rubber stamp the increase in the size, power and scope of the federal government usually at the expense of individual liberties and in violation of the Constitution.

[TheTexan]

What do you mean?

After the SCOTUS gave itself the power of judicial review, it was now able to move forward with its intended purpose:

To rubber stamp the increase in the size, power and scope of the federal government usually at the expense of individual liberties and in violation of the Constitution.

Yup this