Annoyance at a dishonest debating tactic...

[johnpalmer]

I am not yet stating that I support or oppose the recent SCOTUS nominee. Nevertheless, there is one dishonest tactic being used that angers me.

The argument goes that Judge Alito should not be judged as anti-abortion because he cited and held to SCOTUS decisions about abortion, so he he clearly accepts Roe vs. Wade.

It sounds like a sound argument... to someone who knows absolutely nothing about the court system.

Appeals courts are *obligated* to follow SCOTUS decisions. An appeals court judge doesn't have the authority to overrule a decision of a higher court. All an appeals court judge could do is argue that the Supreme Court's decision did not apply for some reason, and the Supreme Court does its best to make sure its decisions are clear to avoid that kind of problem.

Yes, he obeyed orders as an appeals court justice... that does not mean he beleives that Roe vs. Wade should be upheld. Will he uphold Roe by the principle of stare decisis? We don't know. We do know we have reason to be suspicious.

Comments

[nsingman.livejournal.com]

I initially wrote a longer comment, and decided to be more brief. Unfortunately, in deleting that longer comment, I left the digression, and deleted my strong concurrence with your point that accepting a Supreme Court precedent as an appeals court judge in no way indicates whether or not he'd overturn that precedent as a Supreme Court justice. Obviously, I hope he does (and again, I'm pro choice).

You don't need to be a lawyer to understand the fundamental problem with Roe v Wade. You simply need to read the entire Constitution. Roe is a badly flawed decision simply because the federal government has no standing on the issue of abortion. It's a matter for the states. The principle of federalism applies here (see the 9th and 10th Amendments). Does that mean that there should be fifty different sets of laws on abortion? Yes, that's exactly what it means. Will that be inconvenient for some people seeking abortion? Doubtless so. Should the Constitution be bypassed for their sakes? Never. Should it be amended? If that's what enough people and/or states want.

[johnpalmer.livejournal.com]

Nod. And, you see, that's exactly what I don't understand.

The Tenth Amendment says that the rights not given the feds go to the states or the people.

That says that the states don't automatically get the right to regulate something. Some of the rights clearly belong to the people.

Are these people saying that the state can regulate everything? The state could put you in jail if you don't wash your hands after you pee? I feel that the 9th Amendment covers that... the people have rights even if they weren't specifically enumerated.

It's one of those times when I think I have to be completely and obviously wrong for some reason, because it seems clear that, the right to decide if an abortion should be performed under X circumstances either belongs to the people, or to the states... and the SCOTUS delineated when and where the power belonged to the states, and the people... so it seems like a sound decision to me. (Easy to say when I'm on the 'winning' side, but I think it would have taken me aback even when I was solidly pro-life.)

I understand the federalism argument... I just don't see why it so obviously trumps the right of the people. I see Roe as an angry-making decision, but not a poor or weak one.

[nsingman.livejournal.com]

The states don't automatically get the right to regulate something, but they get the default right to regulate almost everything, except where prohibited by the federal constitution and their individual state constitutions. The federal government, on the other hand, may not do anything other than what it's explicitly permitted by the federal constitution.

The right to an abortion is something that state governments and their people must wrangle with on a state by state basis, inconvenient though this may be. And yes, a state could make it illegal to fail to wash your hands after micturition.

The point you're missing, I think, is that the federal constitution is a document that exists primarily to define and limit the scope of federal power, not state or popular prerogatives. State constitutions define and limit the scope of state power, but the states were supposed to have substantial latitude.

I may not like these facts, radical libertarian and laissez faire capitalist that I am, but they satisfy the strict constructionist in me. And I do like the idea of all of us playing by the same clear and explicit rules.

[johnpalmer.livejournal.com]

The point you're missing, I think, is that the federal constitution is a document that exists primarily to define and limit the scope of federal power, not state or popular prerogatives.

You have to understand, using that argument, the Fifth Amendment was only binding upon the Federal Government until the passage of further amendments... and I don't believe that.

But even if it did, I don't think that reasoning could be used after the passage of the 14th Amendment. Once the 14th Amendment came into play, then "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

Adding in the 9th Amendment (and the seemingly clear implication of the 10th) and the people have rights... rights that can't be abridged.

I know that you're sincere in your arguments here, because, as you note, you'd rather believe that I'm right, that the people have more rights, and the government fewer. And I grant, you might be right... but I think it'd take a legal historian to convince me at this point.

Kind of a "Yes, that's the mistake a huge number of first year law students make, because it's a perfectly rational way to read it. Because of this, this, and this, that interpretation can't hold."

[nsingman.livejournal.com]

Ah, but the amendments aren't all the same - not even the first 10. The first, for example, explicitly restricts Congress, and thus the states were free to have established churches. The second and the fifth were more universal in their coverage. No state can control gun ownership constitutionally, nor take private property without compensation, etc.

The privileges and immunities clause is one of the justifications for the "incorporation doctrine" of the 14th Amendment, but even overlooking the controversial ratification of that amendment, the most such a doctrine would have you believe is that the bill of rights must apply to the states. And still, federalism is mostly untouched.

No, for better or worse (and I believe it's better, because I like federalism and local control), I firmly believe that I'm correct here.

[johnpalmer.livejournal.com]

I've been thinking about this, which is always a dangerous thing.

I finally wondered if maybe the reason we would disagree on this is that you see Roe as telling the states what they must do, whereas I see it as saying that the people have a right?

For example, if the SCOTUS says that the state can't criminalize purely written porn, no matter how disturbing, that's asserting a right of the people. It says that the states can't make text-only porn illegal, but it's not exactly putting a demand on the states, either... it's declaring a freedom of the people.

On the other side, if the SCOTUS ruled that the states must allow gay folks to marry (and I don't think this can be justified under the Constitution), that's a clear violation of federalism.

Is our disagreement that you feel Roe is more like the second than the first?

(I'm hoping I guessed right, and that you'd agree with the reasoning of both of these examples. :-) )

[nsingman.livejournal.com]

You're not too far off, I think. If the Supreme Court (the zenith of the judicial branch of the federal government) attempts to restrict the actions of a state government OR the people, they must have a constitutional justification for doing so. In the case of Roe v Wade, there is nothing in the Constitution giving the federal government authority over abortion (or most criminal law), so any federal decision - pro or con - is a usurpation of either state or popular prerogatives.

In this case, I think you see the state and popular prerogatives coming into conflict, and side with the people. I'd like to do so also (I hate siding with any state over any person!), and many state constitutions would see it that way. The federal constitution, however, gives the feds no grounds for overruling state laws on abortion. It's really that simple.

This is one of those situations where the states are given federal constitutional latitude to restrict rights I'd rather they wouldn't. That's why we fight it out in the statehouses, and that's why I'm pro choice but want Roe overturned.