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It's Official: SCOTUS Overturns Roe v. Wade


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4 hours ago, bluebell said:

But it's never just ethics when real people are involved so I lead with compassion and am grateful that I don't have to judge.

Speaking of ethics, I hate hate hate the trolley problem! So binary. I always want to say no to both choices and create an option C.

I think so many advances in humanity are results of people creating the C because a or b was unacceptable.

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Right to Life in the Old Testament. 

Numbers 31:17-18New International Version

17 Now kill all the boys. And kill every woman who has slept with a man, 18 but save for yourselves every girl who has never slept with a man.
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8 hours ago, MikeFoxtrot said:

You’ve sprung my trap before Bernard could step in it. I may as well log off

Wow! I’m glad I dodged that bullet!

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An LDS woman writes on Medium:

"I have always loved this painting for its contrast: God’s overflowing force of creation approaches Adam’s lifeless body. Adam’s delicate, downturned hand awaits quickening. But this time around, I saw more. Adam’s body lies in beautiful Renaissance repose, yes, but lifeless? No. His muscles are defined; his flesh is the same golden chiaroscuro tones as the Lord’s. Adam’s eyes do not stare blankly, he’s looking straight at God. Certainly his heart is beating. Yet just as certainly, something is still missing. Although Adam’s body is, literally, the picture of health, he has no soul.

I look back at God and His crew. Tucked under His arm is a figure different from the angels. A mature woman. It’s Eve, and she’s paying close attention to God’s outstretched hand. It is as if He has told her “Watch how I do this, it’s going to be your job from now on.” Her eyes are fixed on the most famous detail of this fresco: the fingers that almost touch. Tonight I am drawn to the space between the fingers: the space between God and the fully incarnate human. I believe that space belongs to women. It is heartbreaking when the state lays claim to it."

https://medium.com/@erikaepmunson/eves-choice-8a7c68290de5

This reminds me of what Calm was saying.

 

Edited by Meadowchik
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6 hours ago, Meadowchik said:

This sounds really ignorant. Hardship can cause total breakdown. Including total breakdown of health up to death death, abuse, and separation of parent/s from their children.

You're doing the math for others, and making assumptions about cost, when you don't have the information. And you don't have to live with the consequences.

On the contrary, it is choosing abortion because it is “in the best interest” of an otherwise healthy fetus that is doing the math for others.  Mercy killing a healthy fetus is the ignorant position.  That conclusion is the result of an incalculable math equation. 

I am not ignorant of the hardship that can result from childbirth and rearing.  There is no doubt in my mind that abortion could be in the best interest of the mother (not morally speaking).  Again, avoiding hardship that comes as a direct result of one’s own personal choices by killing another is the ignorant position.

Edited by pogi
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7 hours ago, Meadowchik said:

By that token we can't be sure about the rightness of anything. But we may be as sure about it or more sure about it as we are about anything else we think we know.

 

True, but when we are talking about purposefully ending a life, then the uncertainty stakes get upped quite a bit.  So I don't think it's really comparable to most other decisions that we make where we are not completely sure what the best choice is.

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Yet it still crucial to respect that it's *their* moment in their life. We can offer grace and support which may improve the chances of clarity and courage in the face of their challenges.

If it really was only *their* lives (the lives of the mother and hopefully father) that were being affected, then the entire abortion debate wouldn't exist.   That's what makes it the whole topic so incredibly difficult. 

I do think we need to offer grace and support, but I also understand not wanting to support something that you sincerely believe is immoral, regardless of how much you love or respect the people involved.  Again, such high stakes make everything so much harder to navigate.  These interactions will never be simple.

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Posted (edited)
23 hours ago, Teancum said:

Smac

As an attorney what is your take on Judicial review?

That it arises from a necessary and appropriate interpretation of the text of the Constitution, but that it is quite susceptible to overreach and abuse (the same can be said about the exercise of certain types authority given to, or claimed by, the Executive branch (executive orders) and Legislative branches (the current January 6 investigation)).

23 hours ago, Teancum said:

I did not realize till this week that really there could be a position to ignore judicial review.

Yes, that idea gets floated when one political party (or politician, often POTUS) or the other doesn't get their way.  

It's a bit schizophrenic to be upset about the Dobbs case overturning Roe and use it (Dobbs) as a basis to disregard judicial review when Roe was itself a manifestation of it (judicial review) in the first instance.

By way of example of why judicial review is an important check on governmental overreach (despite itself being susceptable to "overreaching"), see here:

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Congress's 1/6 Committee Claims Absolute Power as it Investigates Citizens With No Judicial Limits

The Committee plotted with JPMorgan and its lawyer, former Obama AG Loretta Lynch, to obtain a citizen's financial records with no possibility of judicial review.

And here:

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The FBI's secret warrant to surveil Carter Page should scare all Americans and spur reform

A secret, non-adversarial system of judicial review is an insufficient check to our intelligence agencies and law enforcement.

And here:

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Checks? Never Heard of Them. Balances? Forget About It.

Donald Trump’s unnerving belief that the judiciary’s purpose is to stay out of his way.

And here (from 2012) :

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So yesterday the President made some stunningly stupid comments on the challenge to Obamacare:
 
 
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
 
I would be hardly the first commentator who pointed out that it is far from unprecedented for the Supreme Court to strike down Congressional laws as conflicting with the Constitution.  Now truthfully, they far more often strike down state laws, than Federal laws, but they do indeed get struck down all the time.
 
And I am not the first to point out that this claim is dishonest in another way, namely by claiming that a strong majority passed this law.  In barely squeaked by and indeed in Massachusetts, Scott Brown was elected precisely to stop this legislation, and the Democrats resorted to shenanigans to get it passed without his input.
 
Fewer people notice how dishonest the lines just after it are:
 
And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.
 
First off the average conservative commentator thinks that this law is unconstitutional.  So if anything counts as activism in their minds, it would be upholding this law, mandate and all.
 
Second, it’s interesting that he frames this merely as a conservative concern.  That is because he has no cause to complain about activism.  As I wrote in my Patterico days:
 
And notice that term “activism.”  The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals.  They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air.  Let’s suppose for the sake of argument that the judge’s opinion is not supported by the [C]onstitution or precedent—they have no principled objection to that.  So their objection is merely to losing.
 
You might also enjoy the “augmented” version of the quote by Dana Pico at Common Sense Political Thought (I always appreciated the kind words written there, too).
 
The point is that it is fundamentally dishonest for a liberal to complain about judicial activism.  That’s not to say that true judicial activism isn't a problem.  After all, suppose that secretly behind closed doors the outcome of Bush v. Gore was really about which candidate they preferred?  Then that is a problem, isn’t it?  I mean every justice, as an American citizen, has a right to vote for President, but this would give their vote infinitely more power than any ordinary citizen, if they choose election law cases based on who they want to win.  So much for one person, one vote, right?  I don’t think that is what they did, but I would be the first to denounce it if that is what I believed.
 
And put aside the reality behind Bush v. Gore, the case also shows how inherently dangerous it is to have a large portion of the population believe that the Supreme Court is more or less corrupt.  I mean that is what activism is, really: corruption.  It is justices disregarding their oaths of office and exercising power not granted to them.  And the problem is that when many people believe that the Supreme Court is corrupt, that they let their politics rather than the law guide their decisions, then it means that we have no neutral umpire in our government.  There is no neutral party that the other branches can go to for fair arbitration.  So when we have a crisis like the one Bush v. Gore represented, we have a very real danger that a large part of the country will not accept their decision as binding.
 
Anyway, today Obama tried to walkhis comments back, and ended up coming off clumsy again:
 
MR. SINGLETON:  Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.  But that is exactly what the Court has done during its entire existence.  If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?
 
THE PRESIDENT:  Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner.  Right?  So we’re going back to the ’30s, pre New Deal.
 
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this.
 
So it’s not unprecedented to overturn a Congressional law, just one in the area of commercial regulation since around the New Deal, where most people agree it is commerce.  You know yesterday I thought the President couldn’t actually be ignorant enough to believe his words, especially given that he was a Constitutional Law professor at one time, but now I am not so sure.  For instance, Lochner is a 1905 decision, and the Supreme Court struck down many laws purporting to regulate commerce since then and indeed as pointed out in oral argument last week, Lochner concerned itself with state power, not Federal power.  And indeed several laws in the New Deal were also struck down.  I mean what Obama said is just bad history.
 
And of course Congress has asserted that the Commerce clause has applied to actions that were plainly not commerce, such as carrying a gun near a school or raping a woman.  Now, in those comments Obama seemed to be thinking of those cases when he said it was something that “I think most people would clearly consider commerce.”  Except that most people do not think that sitting on your keister and not owning insurance is commerce.

And here (also from 2012) :

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Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun.  Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise.  Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5.  You’d be a little embarrassed, right?  You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.

Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.”  Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.  Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”:  “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question.  It’s no (well, technically yes…he didn’t).  President Obama taught “Con Law III” at Chicago.  Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student).  Con Law III covers the Fourteenth Amendment.  (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases — Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)  Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.

Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments.  This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.

Here’s a bit of transcript from this morning’s oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:

Judge Jerry E. Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Dana Lydia Kaersvang (DOJ Attorney): Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

KaersvangMarbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.

I must say, I’m pretty dang proud of Judge Smith right now.  And I’m really looking forward to reading that three-page, single-spaced letter.

And here (also from 2012) :

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I have noticed a tendency of some commentators (such as Larry Tribe) to discount the gross inaccuracy of President Obama’s remarks on Monday concerning judicial review, by pointing to the substantially revised views he expressed on Tuesday.  On the NewsHour, my colleague and friend Mike Seidman went so far as to insist that the President’s statement on Monday was entirely correct.  To the contrary, I take the President’s Tuesday statement, along with his felt need to make it, as an implicit admission that his Monday statement was wrong and in need of prompt correction.

I am therefore pleased to see that the President of the American Bar Association reads these two statements the same way I do, and does not attempt to throw the President’s statement on Monday down a memory hole.  But Mr. Robinson goes farther to also imply that a decision invalidating the Affordable Care Act would not necessarily serve as a “good example” of “judicial activism or a lack of judicial restraint.”  He appears to be reacting to and rejecting the obvious ongoing effort by supporters of the ACA or the President (or both) to politicize any adverse ruling by the Court in advance of reading its legal basis.  But his focus is on the President as an “elected official” and “leader,” rather than on these commentators.

STATEMENT OF WM. T. (BILL) ROBINSON III, PRESIDENT, AMERICAN BAR ASSOCIATION

Re: President Obama’s remarks on upcoming U.S. Supreme Court ruling on national health care

President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”

We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.”

Federal judges are, by design, not elected officials. Article II of our Constitution reserves for the president the authority to appoint Supreme Court justices and all other officers of the United States with the advice and consent of the Senate. In fact, President Obama himself has offered more than 123 nominations for Article III judgeships, including two lifetime appointments to our nation’s highest court.

The legitimacy of judicial review was settled more than 200 years ago in the landmark case Marbury v. Madison, which established such review as a key safeguard of the separation of powers doctrine. The Framers of our Constitution clearly understood that an independent judiciary is critical to the maintenance of our democracy and freedom.

It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.

I am a big fan of "judicial review" and "judicial restraint," while I am decidedly not a fan of "judicial activism" and "judicial overreach."  Alas, these last three (judicial "restraint," "activism" and "overreach") are somewhat subjective and amorphous. 

For me, "judicial review" should function as a check on the power of government, not as a means of expanding it.

23 hours ago, Teancum said:

It is not in the constitution.

That's not quite right.  See here:

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The text of the Constitution does not contain a specific reference to the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI.[18]

The provisions relating to the federal judicial power in Article III state:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ... The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. ... In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The Supremacy Clause of Article VI states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 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. ... [A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United States. Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the law, the federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.

I think that last paragraph, though perhaps not artfully drafted, includes the main "beats" of the justification for judicial review.

23 hours ago, Teancum said:

Why does the SC have authority to invoke or revoke law? 

See above.

23 hours ago, Teancum said:

Can their decisions be simply ignored? 

I'm not sure how to answer this question.  You are using the passive voice.  Who would be doing the "ignoring?"  In what context?

If you look at some of the articles above you will see examples about what can happen without judicial review.  Cobnsider what happened in 2009 in Nicaragua:

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Current Nicaraguan president Daniel Ortega, elected in 2007 for a 5 year period, filed an amparo suit before the Constitutional Chamber of the Nicaraguan Supreme Court arguing that a 1995 constitutional amendment that imposed limits to indefinite reelection violates his constitutional rights. The Constitutional Chamber decided yesterday that it is unconstitutional to prohibit the reelection of the president of the Republic.

More info here:

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Take the 2009 Nicaraguan case ... below, where the Supreme Court of Justice of Nicaragua excised presidential term limits from the Nicaraguan Constitution. The decision was issued under extraordinary procedural conditions. The president of the court formally notified the other judges of the vote on the case only after normal business hours had ended, and thus judges and court personnel had gone home for the day. Informally, only those judges affiliated with the president’s party were notified; naturally, the opposition judges on the court did not show up and were replaced by pro-regime substitutes.

The Supreme Court of Nicaragua (a portion of it, anyway) held that a portion of that country's constitution . . . was unconstitutional.

Ironically, the same people who want to argue that "judicial review" is undemocratic are often also those who want to dispose of it (judicial review) so that they can do undemocratic things and get away with such undemocratic things.  From the same link as above:

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In Bolivia, President Morales narrowly lost a 2016 constitutional referendum that would have allowed him to run for a fourth consecutive term in office,215 and which had been legitimated by the 2015 decision of the Plurinational Constitutional Tribunal, Bolivia’s constitutional court, noted above.216 The result of the referendum suggested that while Morales himself was popular, his plans to extend term limits were not.  Rather than risk another popular referendum that would motivate the opposition (and would have been of dubious legality), Morales’s allies instead switched from a strategy of weak abusive judicial review to one of strong abusive judicial review. Thus, they approached the constitutional court with a new argument that the presidential term limits found in the original 2009 constitution, written and promulgated during Morales’s own presidency, should be set aside because they clashed with international human rights law.

The constitutional court accepted the argument in late 2017, holding that the domestic constitution itself had to be compliant with international human rights law as found in the Inter-American System and elsewhere, and moreover that the term limits clashed with international law and thus must be disregarded.

If a person or party ("X") is in political power and doesn't like a law, X can - in the absence of judicial review - just ignore or re-write or toss out the law.

That's a tempting in-the-moment thing for X and those who politically/ideologically align themselves with X, but what happens when someone else ("Y") gains power and does the same thing, and X doesn't like it?

I am reminded here of an amazing scene from A Man for All Seasons.  This film, based on a play, is about Sir Thomas More during the reign of Henry VIII.  More is appointed by the king as Lord Chancellor, but thereafter finds that the appointment comes with expectations from the king that are not compatible with More's sense of ethics.  The scene in question involves More interacting with a poor but ambitious young man, Rich, who wants More's help in obtaining political power.  More declines, and Rich hints that he (Rich) might be willing to pursue his ambitions in other ways, including ways that could injury More.  More nevertheless lets Rich go, much to the consternation of his (More's) wife (Alice), daughter (Margaret) and soon-to-be-son-in-law (Roper).  Here's a link to the video and the dialog:

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Alice More: Arrest him! 
Sir Thomas More: For what? 
Alice More: He's dangerous! 
Will Roper: For lying, lord, he's a spy! 
Margaret More: Father, that man's bad! 
Sir Thomas More: There's no law against that. 
Will Roper: There is - God's law. 
Sir Thomas More: Then God can arrest him. 
Alice More: While you talk he's gone! 
Sir Thomas More: And go he should if he were the devil himself until he broke the law. 
Will Roper: So, now you'd give the devil benefit of law? 
Sir Thomas More: Yes, what would you do? Cut a great road through the law to get after the devil? 
Will Roper: Yes! I'd cut down every law in England to do that? 
Sir Thomas More: Oh? And when the last law was down and the devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, - man's laws not God's - and if you cut them down - and you're just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes. I give the devil benefit of law for my own safety's sake. 

More was, in many ways, a moral man (though the conflation of civil and sectarian authority created some terrible circumstances in which he participated - see, here, here, here, here).  Moreover, as a legal scholar, he knew the risks of letting his emotions predominate over his intellect, and over the law.

When Politician X rails against judicial review, you can bet dollars to donuts that the day will come when X will turn 180 degrees and insist on judicial review.  Without judicial review, we run the risk of a Will Roper-type of person who wants to "{c}ut a great road through the law," only to later realize that the devil he is pursuing has "turned 'round" on him, and that he is left without recourse due to "the laws all being flat."

To paraphrase the (fictionalized) More: "Yes, I give {judicial review} the benefit of law for my own safety's sake."

23 hours ago, Teancum said:

I read an article that said this really started with the Marbury decision and Chief Justice John Marshall.  And while Jefferson did not favor judicial review he accepted it in this case as the outcome was one he wanted.  

Let us assume, for the sake of argument, that you are not a fan of former President Donald Trump.  Let us further assume a hypothetical scenario in which he, in late 2020 - while he was still in office - refused to relinquish the Presidency, and that he does so by using his powers as POTUS to excise and/or ignore and/or rewrite all provisions in the Constitution that limit his presidency to four years.  For example, he re-writes Article II, Section 1 to state: "The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years or for such other length of time he deems necessary and appropriate, and, together with the Vice President, chosen for the same Term."

Absurd as this sounds, could a sufficiently popular POTUS get away with re-writing the Constitution?  It happened in Nicaragua, after all (see above), so why not here?

This sort of thing happens more often than you think.  See, e.g., here:

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This chapter explains the concept of abusive judicial review: the use of courts by regimes to achieve anti-democratic constitutional change. Abusive judicial review involves abusive constitutional borrowing in two distinct senses: first, regimes lean on captured or cowed courts as a strategy to legitimate or advance authoritarian goals, and second, those courts often draw upon liberal democratic doctrines in abusive ways. It develops a typology of two different forms of the phenomenon—a weak form where courts uphold authoritarian moves by political actors, and a strong form where they act more directly to remove obstacles to authoritarian programs. Finally, it draws out two main examples: the Venezuelan Supreme Court’s repression of the opposition-held legislature using a doctrine of ‘legislative omission’ and other tools, and the wielding of militant democracy doctrines by the Cambodian and Thai apex courts to ban parties for authoritarian ends.

In my view, judicial review is an important means of constraining governmental overreach and abuse, both as to intra-governmental power struggles and government-versus-individuals power struggles.  See, e.g., here:

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In 1801, outgoing President John Adams had issued William Marbury a commission as justice of the peace — but the new Secretary of State, James Madison, refused to deliver it. Marbury then sued to obtain it. With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful.

“A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President. Nothing stated in the Constitution gave the Court this specific power. Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.

When James Madison, Alexander Hamilton, and John Jay wrote a defense of the Constitution in The Federalist, they explained their judgment that a strong national government must have built-in restraints: “You must first enable government to control the governed; and in the next place oblige it to control itself.” The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch.

The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review. Although no other law was declared unconstitutional until the Dred Scott decision of 1857, the role of the Supreme Court to invalidate federal and state laws that are contrary to the Constitution has never been seriously challenged.

“The Constitution of the United States,” said Woodrow Wilson, “was not made to fit us like a strait jacket. In its elasticity lies its chief greatness.” The often-praised wisdom of the authors of the Constitution consisted largely of their restraint. They resisted the temptation to write too many specifics into the basic document. They contented themselves with establishing a framework of government that included safeguards against the abuse of power. When the Marshall decision in Marbury v. Madison completed the system of checks and balances, the United States had a government in which laws could be enacted, interpreted and executed to meet challenging circumstances.

Again, "judicial review" should function as a check on the power of government, not as a means of expanding it.

For me, Roe represented an abuse of "judicial review," and Dobbs represents an appropriate application of it.

Thanks,

-Smac

Edited by smac97
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2 hours ago, pogi said:

On the contrary, it is choosing abortion because it is “in the best interest” of an otherwise healthy fetus that is doing the math for others

How do you know this for sure?  What if the spirit that inhabited the body moves to a better body in a family situation more capable of progressing?  What if inhabiting the original body was a necessary (because of agency), but undesirable role for the spirit?

Edited by Calm
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5 minutes ago, Calm said:
Quote

On the contrary, it is choosing abortion because it is “in the best interest” of an otherwise healthy fetus that is doing the math for others

How do you know this for sure?  What if the spirit that inhabited the body moves to a better body in a family situation more capable of progressing?  What if inhabiting the original body was a necessary (because of agency), but undesirable role for the spirit?

I suspect Pogi was presupposing a medical/scientific/biological framework for evaluaing what is "'in the best interest' of an otherwise healthy fetus."

For me, speculation about when the individual's soul/spirit enters the body is not part of the equation when examining the legalities of abortion.  It is an untestable thing.

Thanks,

-Smac

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28 minutes ago, pogi said:

On the contrary, it is choosing abortion because it is “in the best interest” of an otherwise healthy fetus that is doing the math for others.  Mercy killing a healthy fetus is the ignorant position.  That conclusion is the result of an incalculable math equation. 

I am not ignorant of the hardship that can result from childbirth and rearing.  There is no doubt in my mind that abortion could be in the best interest of the mother (not morally speaking).  Again, avoiding hardship that comes as a direct result of one’s own personal choices by killing another is the ignorant position.

Not just the mother individually, but all she has to manage, including the health and safety of herself, her unborn, any other children or loved ones she cares for. For sure women have been faced with this dilemma: "one or more of us will likely die if we don't change this situation. But I cannot change the situation if I am pregnant." 

Iow hardships can mean more than obstacles that we will overcome. Sometimes we don't, or others in our care don't.

 

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In my opinion, judicial review is inevitable where you have a written constitution that is explicitly "the supreme law of the land."  Courts often have to adjudicate between conflicting laws and decide which law is controlling or applicable.  Where there is a conflict between a statuary law and the "supreme law of the land," what else is a court supposed to do?  It must rule that the "supreme law of the land" is controlling and that the conflicting law has no valid force.

Marbury v Madison was rather clever in establishing this principle.  By abandoning a minor additional power granted to it by Congress, it established a precedent that granted it much greater authority in future cases.  One of the parties in MvM wanted the court to issue a writ of mandamus, and the court judged that even though an act of Congress had granted it the authority to do so, the constitution did not grant SCOTUS the authority to grant such a writ.  With two laws in conflict, the court reasoned that the constitution had precedent and was the controlling authority.  The court did not therefore have the congressionally-granted authority to issue the writ. It was the judicial equivalent of a humble brag. 

Edited by Stormin' Mormon
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1 hour ago, bluebell said:

True, but when we are talking about purposefully ending a life, then the uncertainty stakes get upped quite a bit.  So I don't think it's really comparable to most other decisions that we make where we are not completely sure what the best choice is.

If it really was only *their* lives (the lives of the mother and hopefully father) that were being affected, then the entire abortion debate wouldn't exist.   That's what makes it the whole topic so incredibly difficult. 

I do think we need to offer grace and support, but I also understand not wanting to support something that you sincerely believe is immoral, regardless of how much you love or respect the people involved.  Again, such high stakes make everything so much harder to navigate.  These interactions will never be simple.

If there really is a sincere concern, it should be demonstrated in understanding the moral dilemma and sending aid, certainly not just in trying to criminalise, if at all. 

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28 minutes ago, Calm said:

How do you know this for sure?  What if the spirit that inhabited the body moves to a better body in a family situation more capable of progressing?  What if inhabiting the original body was a necessary (because of agency), but undesirable role for the spirit?

It's true that LDS theology does cover the bases. No created spirit will lose the opportunity to have a body and choose.

On another extreme barring any life after death, the unborn who dies before birth will likely have little to no awareness of even being alive at all.

But those are just examples of speculative assumptions. We do know, though, that the unborn live in women, and that most are never born and yet our bodies continue on for decades renewing the process to potentially form new life. Nature, God, or accident has given us this faculty. 

Women have been treated as less-than for too long. My thought is that the woes of poverty and pregnancy loss are largely connected to devaluing women. And the removal of federal protections seems to me like a regression that won't help women and won't help babies.

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1 hour ago, Calm said:

How do you know this for sure?  What if the spirit that inhabited the body moves to a better body in a family situation more capable of progressing?  What if inhabiting the original body was a necessary (because of agency), but undesirable role for the spirit?

What if not?  Either way, it is still doing the math for someone else life, which she was accusing me of doing.  If it is not ok to do the math for someone else (as she claims), then this is an unjustifiable position.  As I said, it is an "incalculable math equation".

Edited by pogi
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4 minutes ago, pogi said:

What if not?  Either way, it is still doing the math for someone else life, which she was accusing me of doing.  If it is not ok to do the math for someone else (as she claims), then this is an unjustifiable position.  As I said, it is an "incalculable math equation".

One thing I'm saying is that if anyone is entitled to do such math, the woman is. Certainly not anyone else more than she is.

So yes, you don't get as much say about how she manages the life inside her.

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55 minutes ago, Meadowchik said:

Not just the mother individually, but all she has to manage, including the health and safety of herself, her unborn, any other children or loved ones she cares for. For sure women have been faced with this dilemma: "one or more of us will likely die if we don't change this situation. But I cannot change the situation if I am pregnant." 

Iow hardships can mean more than obstacles that we will overcome. Sometimes we don't, or others in our care don't.

If they are suicidal, than any countless number of situations could trigger the suicide and increase burden for herself and those she cares for.  We can't just kill anyone who might be triggering, or absolve every responsibility that might be burdensome for her or those she cares for.  Losing a job, foreclosure, a debilitating health issue or injury, an abusive husband/father, etc. etc. etc.    Some of these situations have led to suicide.   We don't support killing the husband because they are a burden.   It is tragic and unimaginable, but taking the life of another is never the right answer for suicide prevention, or to improve the living conditions of ones current children.  

It is tragic that we hold people more responsible for their debts than we hold them for the life of their children.  Upon foreclosure, we don't let people stay in their home if they threaten suicide because that would be abused and is unfair to the creditor and the contract.  They made a choice and are held responsible for it.  It is sad that we care more about what is fair for creditors than we care about what is fair for innocent children.  

These people need help and abortion is not the right way.  

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I'm a pro choice and pro life person, I believe the planned parenthood facilities should be supported in order to avoid pregnancy. There's so many lines that can be crossed here, that we need to do better in all areas, couples that have sex should take every precaution in what they are about to do and the outcome of it, needless to say. I guess this overturning Roe vs Wade could have a good outcome if it makes everyone stop and think. And maybe think tanks out there will supply the better way. 

 

Edited by Tacenda
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1 hour ago, Meadowchik said:

One thing I'm saying is that if anyone is entitled to do such math, the woman is. Certainly not anyone else more than she is.

Actually, I think just about anyone else would be in a better place than her to do the math for the child.  She is the MOST biased person possible to make such a decision, and may be unduly persuaded and blinded by the prospect of her own situation.  Anyone considering abortion is clearly under a great deal of stress.  She may even be suicidal or have other mental health issues that could bias/impact her decision and calculations and causing her to not think clearly in the moment.  She may be the best person to know how a birthing a child would affect her personally (creating the overwhelming bias), but she is not necessarily be the best person to decide how it would affect the child.  Someone under less personal stress and who will not be personally affected by the life-changing situation/decision, and who is not suicidal nor has other mental health issues might be the better person to weigh the moral and ethical consequence of ending the life of the innocent child.  

The fact is that NO ONE should be entitled to make that decision.  One cannot measure the value of the life of that child.  One cannot say that they would be better off dead.  It is an impossible thing to say.  One cannot say what measure of burden makes a life not-worth living for another.  People have endured the most cruel and terrible situations imaginable and still chose life.  They STILL find it worth while.  Mercy killing for another without their consent is unjustifiable - even with their consent it is highly morally/ethically controversial and questionable. 

Edited by pogi
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Just now, pogi said:

Actually, I think just about anyone else would be in a better place than her to do the math for the child.  She is the MOST biased person possible to make such a decision, and may be unduly persuaded and blinded by the prospect of her own situation.  Anyone considering abortion is clearly under a great deal of stress.  She may even be suicidal or have other mental health issues that could bias/impact her decision and calculations and causing her to not think clearly.  She may be the best person to know how a birthing a child would affect her personally (creating the overwhelming bias), but she is not necessarily be the best person to decide how it would affect the child.  Someone under less personal stress and who will not be personally affected by the life-changing situation/decision, and who is not suicidal nor has other mental health issues might be the better person to weigh the moral and ethical consequence of ending the life of the innocent child.  

The fact is that NO ONE should be entitled to make that decision.  One cannot measure the value of the life of that child.  One cannot say that they would be better off dead.  It is an impossible thing to say.  One cannot say what measure of burden makes a life not-worth living for another.  People have endured the most cruel and terrible situations imaginable and still chose life.  They STILL find it worth while.  Mercy killing for another without their consent is unjustifiable.  

This position is extremely disrespectful of women. Disrespect of women is the greatest underlying social cause of abortion.

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22 minutes ago, Meadowchik said:

This position is extremely disrespectful of women. Disrespect of women is the greatest underlying social cause of abortion.

No, it is just considerate of the child.  Once you factor them into the equation you will find that this situation is not all about women.  I would say the same thing if it was men who got pregnant - they would clearly be the most biased ones to make such a decision for the child.

Edited by pogi
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2 minutes ago, pogi said:

No, it is just considerate of the child.  Once you factor them into the equation you will find that this situation is not all about women.  I would say the same thing if it was men who got pregnant - they would clearly be the most biased ones to make such a decision for the child.

It doesn't matter what you think about bias. The unborn is in her. She is the steward, regardless of what people or laws say. Any form of control will be counterproductive. But support? Support can change the world. 

Let go of the premise that we can control women's bodies and embrace the concept of respecting women and supporting the awesome responsibilities conveyed to them.

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9 minutes ago, pogi said:

No, it is just considerate of the child.  Once you factor them into the equation you will find that this situation is not all about women.  I would say the same thing if it was men who got pregnant - they would clearly be the most biased ones to make such a decision for the child.

But the woman is likely the primary caregiver for the first 18 years of the child’s life. It is ridiculous to ignore her opinion of what that life will likely entail and what she is able, unable, willing, and unwilling to do as well as the impact on the rest of her family members whose needs she is likely most aware of and is again the one most likely going to be fulfilling them. 
 

If the government wants more say in whether or not an embryo becomes a child, it should get more involved in providing for the fetus and child. It seems to me a lot of lawmakers are wanting the benefits of control without the responsibility as much, if not more than many women who choose abortion.

Edited by Calm
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7 minutes ago, Calm said:

But the woman is likely the primary caregiver for the first 18 years of the child’s life. It is ridiculous to ignore her opinion of what that life will likely entail and what she is able, unable, willing, and unwilling to do as well as the impact on the rest of her family members whose needs she is likely most aware of and is again the one most likely going to be fulfilling them. 

Yes! Making abortion impossible does not magically make the life work out for the child, if the child is born.

It is a fool's errand to dictate continuing gestation as a solution. There's so much better, effective and righteous ways to channel that energy.

Edited by Meadowchik
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