That is the major flaw in Roe v. Wade. They just made up the trimester thing on the fly. The truth is that there have been great advances since Roe was decided, and the day will come when a fertilized egg can be removed safely from a woman's womb, placed into an artificial womb and then go to full term. Does this mean Roe will be its own demise? Quite possibly.

My own view is that abortion rights should be viewed most liberally from the time of conception, and more and more narrowly from that time through birth.

I was looking at Roe v. Wade in Wikipedia and it's said there that:

"The Court later rejected Roe's trimester framework, while affirming Roe's central holding that a person has a right to abortion until viability."

So I guess it doesn't really have much to do with trimesters. Say a pregnant woman is in need of chemotherapy, I suppose it's up to the doctor to decide if the fetus is viable and they can do a c-section, or they have to abort the pregnancy altogether, should she decide to do so.

As for artificial wombs, who would pay for them? Would the government pick up the tab? It's interesting to see what happens then.

And I completely agree with your last paragraph.

Ironic the name of the case is "Roe"

Roe v. Sperm?

Actually it presents an option with regard to crossing a river: Row v. Wade.

Justice O'Connor raised this point in the 80s. The state's interest in the health of the mother and prenatal child will always be weighed against the mother's privacy right under the XIV Amendment, the reasoning of Roe is on shifting sands, subject to advances in science that push back the date of fetal viability. When we reach that point, the matter will be decided on Roe's judicial progeny.

There was another abortion decision the same day called Doe v Bolton. This was followed up by numerous others, such as Casey v Planned Parenthood. Abortion laws constantly change, but the thing that many legal scholars agree on is that Roe v Wade is bad case law since there is absolutely nothing in the Constitution that creates a right to an abortion, especially one that overrides all 50 states. The states have types of laws and statutes on the books and most of those were not overriden by some sort of federal law. Even Norma McCorvey, the woman who was the "Roe" in Roe v Wade, said she was lied to and regrets taking any part in the original decision.

Faithful, you are absolutely wrong on this. Read the case law starting with Griswold v. Connecticut to see how the right to privacy evolved as a common law outgrowth of the rights granted by the Fourth, Fifth and Fourteenth amendments to the constitution. The word "privacy" is not contained in the constitution, but this does not mean there is no constitutional right to privacy. Also, when you say things like "many legal scholars" or whatever it is, sounds like Donald Trump when he says "people tell me." Name the scholars you cite, and by that I do not mean Scalia who is a Justice, and I do not mean Thomas who is also a justice but no scholar.

Your analysis, taken to its logical conclusion, would restrict the Second amnendment to muskets and whatever else they had in 1783 which were considered "arms."

The fact that the plaintiff in Roe had a late life change of heart has absolutely nothing to do with a constitutional analysis of Roe.

No dontomasso, you are absolutely wrong on this. Calling Roe good case law is like saying Dred Scott v Sanford was.

A right to privacy has never been absolute and has never entailed everything. Do you have a right to beat your children or your wife so long as it's done behind closed doors? Can you build a nuclear weapon or develop anthrax in privacy? It was also an argument slave owners used to defend the institution ("If you don't like slavery, don't buy a slave!")
It's a typical example of left-wing insanity. Privacy has to have reasonable limits, and it is reasonable that privacy cannot be a cover for the taking of innocent human life.

Well, while you may not consider Thomas a scholar, there can be no doubt that White, Rehnquist, Roberts, Scalia and Alito were/are. Liberals who disagreed with Roe included John Hart Ely, Laurence Tribe, Cass Sunstein, Kermit Roosevelt, Alan Dershowitz, Eugene Volokh, Edward Lazarus, Hadley Arkes, etc.

I brought in McCorvey to show that the case was based on fraud and deception.

Faithful I gotta say you really make great points on many issues on this board. You add freshness to these debates, as you bring an opposite but level headed point of view from the lefties on here

Where do I say Roe is "good case law?"

The right to privacy was established in Griswold under the legal fiction that the "penumbra" of rights created by the Bill of Rights and the 14th amendment established this right. This has come under severe criticism from the beginning. The whole "penumbra" thing was invented by Justice Douglas and adopted by the Warren court at the height of its powers. From that roe evolved.

What you have to understand is the context. Pre-Griswold the states had the right to outlaw contraception and just about anything else they wanted. This is pretty much what the far right wants to restore today.

Of course there is no right to beat children, that's a huge stretch. There is a right however for consenting adults to do what they want in the privacy of their homes so long as they are not causing danger to one another.

The right to privacy necessarily entails a restriction on governmental interference in people's personal affairs. I would think a true conservative would be in favor of this.

In other words, they are completely non-textual, ideological made-up "rights" that came from the radical liberal justices in the 1970s. You think liberals would have learned from the slaughterhouse cases and Lochner that is just as dangerous in the other direction.

And it is not either you are for this new judicial legislator superbody or you are for banning contraceptives. The political process, as pointed out and predicted by the dissent, would have taken care of this issue on its own. There isn't a state in the union, despite your conspiracies, that would pass anything even resembling the Griswald statute today because of political pressure. Everyone recognized Griswald was a paints-on-head retarded statute, but decent justices realized that court cannot invent new rights to fix statutory shortcomings. The court radically overreached politically in the 70s with Roe and Griswald. It culminated in the Lawerence decision that decided the founders wrote the constitution to protect anal ex under the pretend right to privacy. Another issue that the political process would have solved on its own.

If you don't like it amend the constitution.

dontomasso and other far left wing extremists don't want to amend the Constitution, they want to interpret it in ways that are totally foreign to its original meaning. It's like taking a steak dinner from a restaurant's menu and saying it really means soy burger. Notice how he brings in contraception as if there's any possibility of that happening. It's far left scare tactics that are devoid of any truth or reality.

Then dontomasso writes: "Of course there is no right to beat children, that's a huge stretch. There is a right however for consenting adults to do what they want in the privacy of their homes so long as they are not causing danger to one another.

The right to privacy necessarily entails a restriction on governmental interference in people's personal affairs. I would think a true conservative would be in favor of this."

While he says that beating children is a huge stretch (ignoring the huge stretch he made when he brought up contraception), he overlooks his own words "causing danger to one another." A baby being killed is the ultimate danger. And by the way, babies aren't being murdered in people's bedrooms, but in stale abortion clinics. He sort of gets what conservative wants about governmental interference in personal affairs (by the way, where are the complaints about Obama's spying that far exceeded what Bush did?) but forgets that it stops when someone is harmed. The ultimate harm is being murdered. The straw man creating a phony conservative argument overlooks the harm caused to the developing baby.

Finally, dontomasso recognizes the fundamental lie of the penumbra that was created out of thin air, yet he defends the lie in the face of his scare story of states taking away contraception. Even Justice Brennan's own clerk, Edward Lazarus, saw through that fraud. It's the Dred Scott case of the 20th century and the far left defends it.

I've always been amazed at the mental gymnastics liberals have to do in order to justify their support for abortion. You can tell most of them know, deep down, they're full of crap.

Oh, I get it, you righties believe in that "original intent" crap. So I guess you believe only property holding men should vote, that governors should appoint senators, and that each african-american counts as 3/5 of a person. Thats what the founders believed, so that is what you must believe, otherwise you would be one of those crazy liberals who understand the constitution is a living document.

It must really be painful to always be on the wrong side of history. Maybe this explains all your rage,

Only a leftie would say such moronic things. Us so-called "righties" believe that the Constitution can be AMENDED. Voting rules are made by the states (but can be regulated federally if there is provable unfairness), and that 3/5 of a person business was corrected by the 13th-15th amendments. Get a clue about what original intent means. It also applies to subsequent amendments. See righties, unlike lefties, believe in the rule of law. But because left-wingers don't respect law and legal process they invented this "living document" crap (and that IS crap, maybe even more disgusting and fetid than the real thing) to make it mean anything they want, which works really well for the schizophrenics out there.

"Wrong side of history"? That's another weasel phrase used by people who have no good arguments to support their positions. Just like the use of the word "rage" when others and myself engage in peaceful debate. Weasel words, name-calling, ad hominem, poisoning the well -- all tools of the left-winger desperate for a fact.

It seems every 7 or 8 months I feel the need to remind posters to familiarize themselves with substantive due process, inherent in the XIV Amendment and the meaning of liberty within the Amendment.

Those, who argue for original intent as the sole method of constitutional interpretation are misguided. Original meaning is more appropriate to describe one of the methods of applying constitutional law to a given set of facts. When the uninformed shout for original intent, it begs the question, "Whose intent? the framers? If so, the framers, starting with the founding fathers, had different perspectives on the general provisions they drafted. Moreover, does one then consider the intent of the the state legislatures or constitutional conventions that ratified the Amendments?

There are arguments to be made intelligently about the several approaches a court may take in applying constitutional principle, but by saying that left wingers invented the living document crap to make it anything they want reflects an ignorance of the constitutional process from Marbury v. Madison onward.

I keep saying that the uninformed always attack decisions they see as activist as liberal abuses, but decisions, such as the Heller case, which was activist in expanding the II Amendment, and the recent voting rights act decision, eviscerating the act show that activism isn't limited to the left wing.

Ivory tower pomposity is often used to degrade and demean those with whom we disagree using ostentatious verbosity as a form of abusive ad hominem. Notice the use of "uninformed," which clearly assumes a set a facts not in evidence. It assumes legal, historical and hermeneutical ignorance. No attempts to prove the unfounded assertion were even attempted.

In common parlance original intent is used synonymously with original meaning or public meaning. As Georgetown University Law Professor Lawrence Solum wrote: "Most contemporary originalists believe that the relevant inquiry is into the original "public meaning" of the constitutional provision at issue. Hardly anyone thinks that the intentions, expectations, or purposes of the framer's are independently entitled to interpretive authority--although they may be evidence of original public meaning."

When speaking of SDP, for example, one side may only have knowledge of post Lochner decisions while completely dismissing the many valid Lochner-era decisions or even the pre-Lochner era. Whatever the case, the sort of liberty that William O. Douglas found in the 14th Amendment's SDP was something that most hermeneutical scholars would call eisogesis, reading something into the text that is not there. Why not claim that penumbras and emanations exist in every document? Why not see penumbras and emanations in simple conversations, or food labels, or everything else? It is simply the legal equivalent of spontaneous generation.

Contrary to ignorant declarations that claim Marbury v Madison saw the Constitution as a living document, it needs to be pointed out that there is a modern meaning and an older one. The older definition of "living document" is a document subject to editing and amending. The modern definition is of loose constructionism, which allows the text to have meaning changes as the surrounding culture changes or social demand. The modern form of "living document," or in this case, "living Constitution," goes back to Woodrow Wilson, Oliver Wendell Holmes and Louis Brandeis. To conflate the new meaning with the older is to engage in historical anachronism and equivocation. The defender of the "living Constitution" approach wants to engage in a legal form of special pleading and utilize a hermeneutic that is not applied to other legal documents. I have yet to see this approach taken to a restaurant menu or to an automotive repair manual. If I ever witness such an event I hope I have the opportunity to document it to see exactly where the penumbras and emanations are found in the description for a chicken burrito or a plate of linguini.

Those who decry, demean and dismiss valid legal decisions that are perfectly in concert with the original understanding and public meaning of the Second Amendment and others are usually the most flagrant exploiters of definitional distortion such as redefining activism to mean its opposite. It not only reflects a poor understanding of American Constitutional history, but history in general.

I will not even go into the fact origanlism has nothing to do with the founder intents. But clearly you have figured everything out, so I will not advise reading on the subject.

As I said before, amend the constitution if you don't like. All those terrible things above were amended, not the results of judges making up new doctrines under a living constitution (ie what the lords and ladies at Yale Law School think at the time).

Do you seriously want to compare making up doctrines out of whole cloth like Abortion out of a bizarre compilations of amendments to defining the details of something clearly mandated under the constitution (gun rights)? One has a textual basis, the other does not.

If things are so flexible under your view of the constitution, what exactly was wrong with Lochner or the Slaughter house cases? Is it just a ideological litmus test of "i agree with this policy"? Because I agree with underlying substance of Lochner, but realize it was legislating from the bench and hence wrong. Those like me will try to convince the public and change policy through the political process- not encourage philosopher kings.

It's not a bizarre compilation of amendments. The XIV and V Amendments dovetail each other in protecting life, liberty and property, and the pervasive interests of liberty -the right to be left alone- is inherent in the First and Fourth Amendments. Certainly you believe there are unenumerated constitutional rights as well as numerated rights. The framers did, and the several states that ratified the Bill of Rights would not have done so without the Ninth.

And regarding Heller, there is no textual argument that the second Amendment protects a person's right to own firearms for self-defense as Heller suggests in a 5-4 decision. Here's where original meaning comes into play. A key phrase in the Amendment is "The people." When dealing with individual rights, like those in the Fifth Amendment, the word "person" is used to connote a personal right. When the term ""the people" is used (as in We, the people, or the people's right to assemble), it refers to the citizenry of free men acting for a public purpose. The language of the Second Amendment tying the right of "the people" to the purpose of national defense, defines the right. Moreover, some state constitutions at the time of the federal constitution's origins included provisions recognizing self-defense and hunting as bases for the right to own firearms. The founders specifically rejected these as a basis for the Second Amendment. Also, the phrase "bear arms" carried a connotation that was limited to military or national or state defense, not for an individual purpose.

Therefore Heller (the first time the Second Amendment was ever interpreted to involve an individual right and"invented" right to owning a gun for self-defense) is an activist decision that expanded the meaning of the Amendment.

The Slaughterhouse cases were based on the privileges and immunities clause while Lochner was based on the due process clause. Nobody puts much credence in slaughterhouse as good law, and Lochner is also deemed as flawed. But these are economic cases, which today have a nuch lower level of scrutiny by the courts than individual rights and fundamental rights.

Regarding the Heller case you don't know what you're talking about. This is where historical context is of the utmost importance, and your anti-self-defense bias is clearly clouding your interpretation. Clayton Cramer, for example, showed that for the entire early American period firearms were present in many homes for defensive purposes. It was normal for homes to be armed against aggressors as well as for hunting purposes. To make the claim that arms holding was limited to militias is historically absurd.

The left-winger wants to take away the inherent right of self-defense from a citizen to who faces armed attackers. It's simply unconscionable.

Under the standard you state above, I can create madeup doctrines based on the XIV and V in almost any respect. There is no limiting principle at all, except maybe political pressure on the court. The fact you think the XIV and V stand for or can be constructed in a fashion on-demand abortions on a national level is laughable. It is ahistorical, atextual, and has a shifting, completely indeterminate justification. I will not even get into the federalism concerns raised by the doctrine, as clearly the constitution stood for much stronger federalism than enforced today.

You still haven't answered my question: Why can't I rejustify lochner using those "rights" under XIV and V? People have a right to contract with others without the government getting involved in their private transactions. There are liberty and property interests at stake. At least it wouldnt be ahistorical.

On the other hand, you are going after clearly textual rights that were extremely important to the framing process. The 2nd amendment meaning clearly refers the people's right to overthrown the government when it become tyrannical. Without a right to bear arms individual, that is a impossible task.

Only under a warped jurisprudence could you look at the constitution and see the framers endorsing on-demand national abortion rights and see no right to have a weapon in your own home. I honestly support abortion rights for the most part, but Roe is a moronic decision on every level and permanently ruined the courts standing in our society as a fair arbitrator.

[quote=Faithful1

The left-winger wants to take away the inherent right of self-defense from a citizen to who faces armed attackers. It's simply unconscionable. [/quote]

This is the kind of statement that devoids you of credibility. I am a left winger and am in favor of a citizen's right to self defense from armed attackers. I am not in favor of schizophrenics or drug addicts or other mentally disturned people carrying firearms, I am not in favor of the "right" to carry firearms into bars or moie theaters, and I most certainly not in favor of the "right" for a vigilante to arm himself, follow a kid he profiles all around a neighborhood, be told by the cops to stand down, who then gets out of his car and shoots the kid to death get away with it.


Your legal analysis, the logical conclusion is that Marbury v. Madison, which gave the Supreme Court the powers it has was a bad case, and that it opened the floodgates to everything that has come forward since.

As for Roe, it was the right decision for the wrong reasons. The Court learned its lesson in the recent Gay marriage decision, which has opened the door to Gay marriage, but not proclaimed it the law of the land as they did in Roe. They could have limited Roe to the facts at bar and ruled favorably in a narrower manner. Incidentally Roe was technically moot by the time it got to the court, but it was heard under the doctrine (also not found in the constitution) of "capable of repitition yet evading review.

There are most certainaly unenumerated rights, and some are ancient ones. It is the law of this country that anything not covered by the constitution statutes or U.S. Common law is still governed by the laws of pre 1776 England. A good example is Riparian rights, which goes back forever. Statutes have changed it a great deal, but it is never mentioned in the constitution, but the rights and liabilities came from England to the US courts and legislatures.

dontomasso, you are in no position to question anyone's credibility. I was right about what I wrote about left-wingers and self-defense. You are for it in theory, but then you kill it with a death of a thousand cuts by adding qualifier after qualifier, then bring in the Zimmerman case out of the blue because bringing him evidently makes you feel better about yourself.

Talk about not having credibility, your summary of what he did is way off base. He didn't follow "a kid" around a neighborhood, there was no evidence he racially profiled him (even if he did -- so what?), he wasn't a vigilante, the cops didn't tell him to stand down, and he didn't get out his car and shoot "the kid" to death. Damn, have you not read anything about the case? Sounds like some far left-wing MSNBC talking point.

Roe was the wrong decision for the wrong reason. Things aren't right just cuz you like them. Right means either morally good or factually correct. The Roe decision is neither.

Nobody seems to want or be able to counter Little Nicky's arguments. I find that rather illuminating given the great legal minds that this site has.

Bottom line, for the Supreme Court to legalize abortion on the basis of the "right to privacy" in the Constitution was such a stretch as to be laughable to anyone who is honest about it. That's the problem with the libs and their "living document" bull crap. The twist and pervert the meaning of the Constitution to whatever they want.

Actually, you don't know what you're talking about. First of all don't assume what my policy view points are. I assure you know less about them than you do about the origins of the Second Amendment. It is laughable that you suggest that because many men owned firearms before, during and after the ratification of the Bill of rights, it somehow shows that the Second Amendment guarantees a right to own firearms for the various purposes, for which they were being used. You neglect two major facts in the shallow analysis:

1. The Bill of Rights, when ratified, were inapplicable to the several states. Ownership of guns among the citizenry existed, unaffected by the Amendments.

2. The state constitutions, which addressed owning guns and bearing arms (two distinct things), governed the rights of ownership. Some states included a right to gun ownership for hunting. Others did not, but that didn't mean it was outlawed.

There is actually a hell of a lot that prevents the Lochner-type case from becoming law. First, one of the major recognized problems of the case is that it was decided the XIV Amendment grounds of liberty. The Supreme Court in the 1920s and early 30s struck down many laws on this basis, frequently New Deal legislation. However, for the past 75 years the Court has applied a rational basis test to determining these cases involving economic cases. Therefore, precedent has established review of these cases on a standard that the law is constitutional if there is a rational basis for its enactment to achieve a legitimate govrnment purpose.

If you understand the process of certiorari, you know that a miniscule percentage of cases seeking SC review actually are granted review. It is rare that a case, like Lochner, that does not involve a fundamental right, and had been decided by the Circuit Court according to the low level of scrutiny, firmly established by decades of precedent, even makes it to the SC for consideration (4 justices need to agree to accept it). Through stare decisis and the application of tests for review, it is highly unlikely, you would see Lochner reborn in this day .

Klydon, my friend, you and I and others are wasting time with these knuckle dragging right wing holes. They sonsider their opinions, however ill advised to be "facts," and there is nothing that can be donne to change their minds. I'm quits with these people and their posts. Just take heart in the dact they cnstitute about 23 per cent of the electorate, and they will prevent the Republicans from taking the White House for at least 11 more years, assuming Hillary does 8. By then Ted Cruz and Tea Party will be trivia pursuit questions.