Abortion IS subject to the democratic process!

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Freddie

Freddie deBoer used to blog at lhote.blogspot.com, and may again someday. Now he blogs here.

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  1. Avatar Jaybird
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    says:

    “that’s how Dred Scott was effectively overturned.”

    It took a war that killed a sizable number of the members of the opposition to, say, the 13th Amendment to get the 13th Amendment passed. Effectively.Report

  2. Avatar Freddie
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    says:

    Are there legal and democratic structures in place that could allow the pro-life movement to amend the Constitution to outlaw abortion?Report

    • Avatar Jaybird in reply to Freddie
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      says:

      Are there legal and democratic structures in place that would have allowed the pro-emancipation movement to amend the Constitution to outlaw slavery?

      Or were there effective limitations that required a pile of bodies before these issues were effectively hammered out?

      (As an aside: Dred Scott always struck me as an example of the Supreme Court relying *HEAVILY* on stare decisis, established precedent, and a severe case of the hesitants to engage in “judicial activism”… which makes it somewhat distinct from Roe v. Wade.)Report

      • Avatar Consumatopia in reply to Jaybird
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        says:

        Wait, if Dred Scott could not be overturned by democratic, constitutional process, why did the South feel a need to secede?Report

        • Avatar Jaybird in reply to Consumatopia
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          says:

          They probably felt like The North was going to shove stuff down their throats, like it or not, and when told “love it or leave it”, they said “we’ll leave it”.

          At which point the North pointed out that that wasn’t a real choice being offered and clarified the hell out of the statement.Report

          • Avatar Consumatopia in reply to Jaybird
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            says:

            Shove stuff down their throats by constitutional process? Otherwise, it seems kind of stupid to secede to pre-empt the other guy’s potential, future violation of the constitution.Report

            • Avatar Jaybird in reply to Consumatopia
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              It’s not like The South had any reason to worry about The North imposing its cultural values at the point of a gun, did it?

              (Note: The problem with these discussions is that slavery *OUGHT* to be ended, wherever it is found, at the point of a gun if necessary. Kill slave owners. Kill tyrants. Sic Semper. But when you make that concession, one wonders whether we shouldn’t go into more places to find more dragons to slay… the Taliban is pretty awful, you know… Saddam was pretty bad too. Shouldn’t we go into Sudan? Rwanda? Zimbabwe? The world is full of savages that need our shepherding… and you’re stuck wondering where one ought to err, for err one shall. On the side of intervention or on the side of not intervening? I’ve begun to wonder if the price of intervention is ever worth paying… no matter how cheap our intentions tell us the bill will be, the reality of our actions in practice seem to demonstrate a huge bait&switch has taken place.)Report

              • Avatar Consumatopia in reply to Jaybird
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                says:

                Reason prior to the Civil War? Is there evidence that the Republicans were prepared to simply ignore the Constitution? Because it certainly looks like it was the South that abandoned the Constitution, not the North. That’s what secession is.

                The wisdom of interventionism is orthogonal to this argument–the North was fighting for territorial integrity, as was its right, and emancipation was merely a tool towards that goal.Report

              • Avatar Jaybird in reply to Consumatopia
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                says:

                “Territorial integrity”

                Am I allowed to beat my wife when she asks for a divorce? How much less is the government justified in killing people to keep them from leaving?Report

              • Avatar Consumatopia in reply to Jaybird
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                says:

                My original question about Dred Scott remains unanswered.Report

              • Avatar Jaybird in reply to Consumatopia
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                says:

                If Dred Scott was so bad, why didn’t Congress pass a law and have it signed by Buchanan?

                Surely it was just that easy!Report

              • Avatar Consumatopia in reply to Consumatopia
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                says:

                The fact that the South seceded after the North won a fair and legal election, and before the winners of said election had time to do anything unconstitutional, suggests not only that there were legal and democratic structures in place to outlaw slavery, but that the successful use of those structures was imminent, and the effective limitations you refer to did not exist.

                It was not in response to Buchanan’s election that the South seceded, was it?

                Hey, I’m no expert on the Civil War, (clearly neither are you) maybe there’s some fact I’m missing about the 1860 election and its aftermath that I’m missing. But all the generalities and sarcasms you offer about how mean and nasty those damn yankees were is utterly irrelevant to the specific issue at hand.Report

              • Avatar Jaybird in reply to Consumatopia
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                The South did, in fact, secede after a fair and legal election. From what I understand, Buchanan is considered the Worst President Ever because the South was fixin’ to secede and he did nothing because he didn’t feel he had the power to prevent it (a fair reading of the Constitution). When Lincoln got elected, that was the last straw and The South said “I’m Audi”.

                And now we can have a discussion of whether government that exists without the consent of the governed is anything but tyranny that veers off into “I can’t believe you’re defending slavery!” language every few sentences.Report

              • Avatar Consumatopia in reply to Consumatopia
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                says:

                The South did, in fact, secede after a fair and legal election.

                Thank you for confirming everything I said with this one sentence. Your first post at 10:46 am yesterday is difficult to reconcile with this sentence you have posted now. Nothing else in that post had any relevance whatsoever to anything I said.Report

              • Avatar Consumatopia in reply to Consumatopia
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                says:

                Ugh, that was uncalled for on my part. I didn’t accuse you of defending slavery, but my tone in that last post was still unfortunate. Sorry.Report

  3. Avatar Will
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    The “democratic process” is not a synonym for national majoritarianism. People like Douthat think that states and localities should be given a lot more leeway to restrict or liberalize abortion regulations, depending on what political conditions prevail. I tend to agree. I also think this is a more apt characterization of what the “democratic process” is about.Report

  4. Avatar Freddie
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    The “democratic process” is not a synonym for national majoritarianism.

    Then it’s, what? Whatever process happens to deliver results someone likes in a particular instance? Do you take that position on all constitutional issues? It seems to me that you can either favor massively amending our system for all issues, or not. Too many people like Ross suddenly have a major problem with our system on the issue of abortion and none other. If I’m going to take reform of our most basic structures for determining constitutionality seriously, it would have to come from some sort of general movement, not simply for abortion.Report

  5. Avatar Ryan
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    says:

    Ross doesn’t (necessarily) want an amendment *banning* abortion. He wants a Constitution that is silent on the question of abortion, allowing states and localities to make their own calls in response to public opinion. In some places (Vermont, anyone?), that would probably mean pretty liberal abortion laws. But they would be enacted by people elected to make hard calls like that, and that would grant them quite a bit more legitimacy.

    You may disagree with Ross’s position on the wrongness of Roe and on the Court’s obligation to short-circuit the democratic process (which should be differentiated from the Constitutional process – something you have not done here, instead pretending that the Supreme Court is democratic for some reason), but you’re being particularly uncharitable in your reading of his point.Report

    • Avatar Alia in reply to Ryan
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      The problem as I see it is is relegating abortion as an issue for “public opinion.” Why should the public have any say in a woman’s personal reproductive health? Should we have left the issue of miscegenation up to individual states and “the public”? The rights afforded by the US Constitution, realistically, have less to do with public opinion and more to do with the freedoms enumerated and even implied within that document.

      If you polled the public and asked them whether or not the Westboro Church should be allowed to protest at the funerals of US servicemen, I guarantee that the large majority would say either “no” or “no, but the Constitution gives them the right to Assemble and the right to Free Speech.” What Westboro does is despicable, but I don’t see anyone jumping to amend the Constitution.

      The Federal Government should stay out of the bedrooms of its citizens, and stay out of the personal medical decisions between its citizens and their doctors, but so should the states.Report

  6. Avatar Jaybird
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    says:

    I would be down, absolutely down, with the idea of a Constitutional Right To Privacy (9th Amendment, baby!).

    I’m licking my lips at the prospect.

    I doubt that you, Freddie, would be willing to say that as little of my life and lifestyle is your business as I am, however…Report

  7. Avatar Freddie
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    Ryan, could foes of abortion theoretically pass a constitutional amendment relegating the laws concerning abortion to the states? Yes, if they had enough popular support. But they don’t. You guys dance and dance, but that’s the bottom line.

    pretending that the Supreme Court is democratic for some reason

    The Supreme Court is an institution empowered by the Constitution, a democratic document, ratified by democratic representation of the states, and subject to amendment. If you don’t want the Supreme Court to make binding decisions about constitutionality, you can amend the constitution.

    Again– if you aren’t generally opposed to the basic system of constitutional law in this country, and agitate as such, but only complain about it when it produces law you don’t like, your opinion is not to be taken seriously.Report

    • Avatar Jaybird in reply to Freddie
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      says:

      “Ryan, could foes of abortion theoretically pass a constitutional amendment relegating the laws concerning abortion to the states?”

      Could foes of slavery have theoretically passed a constitutional amendment outlawing slavery?

      Or was there a pile of bodies that needed makin’ before they were able to do this?Report

    • Avatar Ryan in reply to Freddie
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      says:

      Chris argues this point well below, but the Constitution is not a democratic document in any pure sense. The whole idea of having a set of rights that will be enforced by courts against the decisions of the majority is intensely anti-democratic – and that’s a good thing!

      The point here is not that those of us who want any legislative control at all, whatsover over abortion have the power to amend the Constitution, it’s that we find the decision removing abortion from the traditional democratic process to be basically extra-constitutional. You’re right that we couldn’t get an amendment returning abortion to the states, but I’m going to guess you couldn’t get an amendment establishing the Roe regime either. The point is that the Court picked a spot for us, and we find that wrong (not illegitimate, which you keep calling us on – no disputes the *right* or the *authority* of the Court to make the call it did, we dispute the *wisdom* of the call itself).Report

  8. Avatar Freddie
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    says:

    I would be down, absolutely down, with the idea of a Constitutional Right To Privacy (9th Amendment, baby!)

    This is an argument about how the case was decided, not about whether the case is still subject to review. And it is.Report

  9. Avatar Will
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    says:

    Freddie –

    I think the democratic process is some combination of robust constitutional protections, national democratic deliberation, and a decentralized approach to state and local government. We can disagree about the right balance between the three, but your narrative basically ignores the rights of states and localities to self-determine their approaches to abortion.

    Ryan –

    I think that’s spot-on.Report

  10. Avatar Freddie
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    says:

    your narrative basically ignores the rights of states and localities to self-determine their approaches to abortion.

    No; our Constitution empowers the Supreme Court to make binding decisions about constitutionality that apply to all states. If that is something that you disagree with, that’s fine– work to change that aspect of the Constitution. But that’s a big change….Report

  11. Avatar John Schwenkler
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    Ross would indeed be wrong if he’d said that the courts had “taken abortion out of the democratic process”, but sadly for your argument he didn’t. The language of “subversion” in your last paragraph is much more appropriate to his column, and it’s also a perfect description of what Roe and the subsequent abortion rulings did: the courts invalidated local mandates and spit in the face of popular opinion to institute a legal regime that they knew would be extremely hard to dislodge democratically (or judicially, for that matter). Claiming that that’s not a subversion of democracy is a bit like saying that poll taxes are perfectly democratic; all that people have to do is pay them.Report

  12. Avatar Will
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    says:

    Incidentally, the fact that there is an extremely difficult and cumbersome mechanism for outlawing abortion (a constitutional amendment) that makes absolutely no allowance for local variation doesn’t make the process democratically legitimate. I mean, I suppose the democratic process does offer some recourse, but the bar is set so impossibly high that the status quo is demonstrably less democratically legitimate than it should be.Report

  13. Avatar Freddie
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    says:

    Ross would indeed be wrong if he’d said that the courts had “taken abortion out of the democratic process”, but sadly for your argument he didn’t.

    Ahem. I quote:

    If abortion were returned to the democratic process, this landscape would change dramatically.

    Now perhaps, John, you know of a way that something can be returned without first being removed, but I’m afraid here on Planet Earth, that’s how it goes.

    Incidentally, the fact that there is an extremely difficult and cumbersome mechanism for outlawing abortion (a constitutional amendment) that makes absolutely no allowance for local variation doesn’t make the process democratically legitimate.

    That is an argument about our system of jurisprudence and law-making, not about this issue; if you generally oppose that system, as I keep saying, have at it. But it better apply to other issues than abortion.Report

  14. Avatar John Schwenkler
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    says:

    Now perhaps, John, you know of a way that something can be returned without first being removed, but I’m afraid here on Planet Earth, that’s how it goes.

    He never said that it had been removed by the courts, Freddie; a perfectly natural way to read him is as lamenting the fact that the political process in general has – for obviously understandable reasons, given where the bar has been set – been unable to treat abortion as a democratic issue.Report

  15. Avatar greginak
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    says:

    I still don’t think Ross or others on his side have addressed the idea that the right to legal abortion is a privacy issue. States, towns, etc do not have the right to take away constitutional rights. If abortion foes want to come out and say they see no right to privacy in the constitution , which I think many do, then they should do so. And then take the heat from the right, middle and left that they know they would.

    Viva 9th amendment baby!Report

  16. Avatar Freddie
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    says:

    I think my example of the DC handgun ban being overturned is a really important analog. If my hometown or home state wanted to pass a similar ban, we would be unable to, because of the DC ban being overturned by the Supreme Court. That’s equally an affront to state and local rights to self-government. But it is our system; perhaps there really is too much power vested in the federal court system. That’s a really big conversation, though, much bigger than abortion.

    He never said that it had been removed by the courts, Freddie; a perfectly natural way to read him is as lamenting the fact that the political process in general has – for obviously understandable reasons, given where the bar has been set – been unable to treat abortion as a democratic issue.

    That’s a fair point.Report

    • Avatar John Schwenkler in reply to Freddie
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      says:

      I think my example of the DC handgun ban being overturned is a really important analog.

      I agree, but I think it’s perfectly natural to claim that democracy has been subverted by the courts in this case; the question as ever is whether one thinks it deserved to be.Report

    • Avatar Mark Thompson in reply to Freddie
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      says:

      This may be nitpicking since you were using a hypothetical, but it’s worth mentioning that it’s still very much an open question as to whether Heller will apply to the states, i.e., whether the 2nd Amendment is incorporated in the 14th. So far as I know, two of the three circuits that have considered it have thus far concluded that it does not.Report

  17. Avatar Will
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    says:

    “That is an argument about our system of jurisprudence and law-making, not about this issue; if you generally oppose that system, as I keep saying, have at it. But it better apply to other issues than abortion.”

    I think you’re conflating the legitimacy of the democratic process with the constitutionality of the decision. No one is arguing that the Court didn’t have the right to decide Roe, only that their decision bypassed more established mechanisms for legislating abortion. Report

  18. Avatar Chris Dierkes
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    The Constitution is not a democratic document. It’s a republican document. It forms a federal republic. Which sometimes uses some democratic forms. And other times doesn’t (like the thankfully supremely undemocratic Bill of Rights).

    “We hold these truths to be self-evident” not “We voted on them so we think they are fantabulous.”

    To Freddie and Will’s points…the Constitution does set up a Supreme Court which has power to interpret laws (and judge certain laws unconstitutional). Similarly the Constitution also specifically states any rights/powers not enumerated defer to the states.

    Just citing both of these principles doesn’t really get us anywhere. You have to argue in this particular case (abortion) why one constitutional principle should override another. Or at least more properly applies in this case.

    And when (as I think is manifestly the case in abortion) the constitutional arrangements are in conflict, how to adjudicate? Particularly when one of the parties involved is the Courts, usually the group one would turn to to be arbiter of a dispute.

    I think Freddie’s right that there is a democratic process as it currently stands relative to this debate. I also think John/Ross are right that in Roe the Courts subverted democratic process and over-reached. I think Freddie’s point would have more weight if he were more honest about the overreach part.

    Which is why I think we have “clowns to the left of me, jokers to the right” here we are stuck in the middle with this unhelpful decision and no way out of it that wouldn’t do more harm than is already the case.Report

    • Avatar Mark Thompson in reply to Chris Dierkes
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      1. What Chris said, with some caveats.
      2. To elaborate, the point of Constitutional rights – and really of a Constitution of any sort – is that some things should not be subject to the whims of the majority, i.e., above democratic process. What Roe did, in effect, was thus to remove the abortion issue from the normal democratic process.
      3. “Democratic process” implies that all parties to the process stand on a more or less equal footing – whoever can put together a majority, or at the very least, a plurality, makes the decision. When a constitutional amendment is required, the various sides are not on equal footing – those opposing an amendment need only maintain support from 1/3 of the overall population and/or a majority of 25% of the states, while those supporting amendment must: a. Come to agreement on language for said amendment with the knowledge that they will likely be unable to change it once instituted, and b. cobble together a supermajority of the overall population and a majority in 75% of the states.

      Think about it this way: if we lived in a system where a President, once elected, could only be removed from office if a particular opponent beat him in 75% of the state legislatures, and received 2/3 of the vote in both houses of Congress, would we call that a democracy, or even a representative democracy? I’m not at all sure we would. (I’m using Congress and the legislature as proxies for the popular will here, obviously).Report

    • Avatar EngineerScotty in reply to Chris Dierkes
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      says:

      The courts were not “involved” in Roe, any more they are involved in other cases they decide. They were not litigants, they were the arbiters. To suggest that the Supreme Court is a “party” to Roe, implying that the role they played exceeded their Constitutional role and duty, is plain wrong.
      And of course, many Supreme Court decisions, wherein some law is held unconstitutional, likewise “bypass more established mechanisms” for legislation on the subject matter at hand. Which is the point–certain subjects are excluded form the legislative purview, and it is the role of the Court to restrain legislatures when they exceed their authority.
      The issue of whether or not Roe is good law is still an interesting one–unlike many other recent SC decisions on controversial issues (Heller, Lawrence), Roe came out of left field, and many consider the logic of the majority to be dubious). But the Court did not exceed its authority in deciding Roe–if it did, then hundreds of other groundbreaking decisions are also invalid.Report

  19. Avatar sidereal
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    says:

    Obviously, the problem is that ‘democraticness’ is not a binary value. There is a spectrum of degrees of democracy. . from maximally democratic where presumably the citizenry would have a majority vote on the acceptability of each individual abortion; to a minimally democratic regime, which would presumably involve some kind of despotic hereditary monarch deciding abortion issues. So when Douthat and others say that abortion has been removed from ‘the democratic process’ they really just mean that it’s further down the democraticness pole than they would like (or think just, or whatever). Add to that Will’s (and others’) point that Ross also seems to mean that the decision is insufficiently local, which is a question that is often conflated with democracy but is technically distinct.

    After all, if each little township had its own Supreme Court and the local Supreme Court decided similarly to Roe, Ross could just as well say that the decision was not democratic, even though it was acutely local.Report

  20. Avatar matoko_chan
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    says:

    Pfft

    The “democratic process” is not a synonym for national majoritarianism.

    To conservatives it seems to be a synonym for mob-rule. Federalism is just localized mob-rule.
    Douthat is a nasty piece of work, just like McArdle.
    Terrorist apologists both of them.
    You see, boiz and grrls….the bad old Constitution and the rule of law FORCED poor Scott Roeder to whack that evil bloody handed abortion doctor.Report

    • Avatar Jaybird in reply to matoko_chan
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      I would prefer extremely localized mob-rule to the assumption that our betters know what’s best for us even though they are hundreds and hundreds, if not thousands, of miles away.

      “Colonialism” is the old term for bringing good government to the savages.

      For my part, I am not willing to pick up the White Man’s Burden.Report

      • Avatar Consumatopia in reply to Jaybird
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        says:

        Note that both before and after the civil war, that local mob violence was very frequently on the part of “civilized” white men against “uncivilized” races.Report

        • Avatar Jaybird in reply to Consumatopia
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          says:

          Thank goodness we killed 600,000 in order to successfully rehabilitate the South.

          Reconstruction might have failed had we not stuck to our guns in the years that followed 1865!Report

          • Avatar Consumatopia in reply to Jaybird
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            says:

            My point was that colonial attitudes exist at the local mob level too. To put it another way, colonies have colonists.

            I implied nothing about the wisdom of the civil war, but, yes, Reconstruction failed because we did not stick to our guns in the face of Southern racial terrorism.Report

            • Avatar Jaybird in reply to Consumatopia
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              Well, at least 600,000 people died.

              Our *INTENTIONS* were good!Report

              • Avatar Consumatopia in reply to Jaybird
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                says:

                Please reread my post at 4:08, and note especially the first clause of the third sentence.Report

              • Avatar Jaybird in reply to Consumatopia
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                says:

                And the conclusion I’m beginning to reach is that the fact that colonies have screwy power dynamics does not, in itself, justify meddling from outside power dynamics in order to set things right.

                Even if the people you’re going to be killing are really, really bad, how often is the solution you will be imposing going to result in a better situation?

                Are you not, at that point, making the same argument that the slaves should be pleased that we brought them here because, hey, they’re better off now?Report

              • Avatar Consumatopia in reply to Jaybird
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                I don’t object to non-interventionism on the grounds of prudence, but I do object when it’s grounded on the rights of local tyrants to oppress.Report

              • Avatar Jaybird in reply to Consumatopia
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                says:

                It’s not on the “right” of local tyrants to oppress.

                But let’s look at the history of folks going and doing everything they can to get rid of a local tyrant… hasn’t that been the framing of *EVERY* invasion? “We’re going in there to liberate those people!”

                Hell, isn’t that the justification for banning abortion? “We’re trying to keep people *ALIVE*!!!”

                I’m getting over “intentions”.Report

              • Avatar Consumatopia in reply to Consumatopia
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                says:

                “We’re going in there to liberate those people!” Hell, isn’t that the justification for banning abortion?

                No, it’s the justification for the feds preventing Kansas from banning abortion.Report

  21. Avatar matoko_chan
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    says:

    Gee, that is big of you jaybird.
    You can sneer about the White Man’s Burden when you white men can get pregnant, kk?Report

    • Avatar Jaybird in reply to matoko_chan
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      says:

      Kids these days.

      It’s a Kipling reference.

      There’s a poem out there that you may find interesting. Or, whatever, you may not.

      For my part, I hesitate to say that my community is right to the point where we ought to start imposing our values on that community. Why? Colonialism doesn’t appeal to me.

      This is where that poem comes in.

      If you, however, feel that your values are righteous enough that they need to be imposed on the savages, you are perfectly entitled to feel that way.

      I’m just going to ask for the ostensible differences between you and Kipling… beyond, of course, having a much better culture than those savages.Report

      • Avatar greginak in reply to Jaybird
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        says:

        really jay, how does a national government relate to colonization? Are you really suggesting that living in a large nation is equivalent to being colonized? If you are then what is the distance (in miles or kilometers ) that separates a good, local gov from an evil oppressive colonizing government? And that would make our constitution and bill of rights a horribly evil instrument of colonization? And any enforcement of the constitution is colonization. Why are people far away some how acting as “our bettors” and locals all good and noble? It sounds like people who are far away are somehow inherently evil? Can’t people who don’t live near you be good people doing things for good reasons?Report

        • Avatar Jaybird in reply to greginak
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          “really jay, how does a national government relate to colonization?”

          The quick and dirty answer is “taxation without representation”. If I am not represented by my so-called “representatives”, then my government does not represent me. If the people making decisions for my life are hundreds of miles away and don’t listen to my concerns, how is that *NOT* analagous to Colonial times?

          “Are you really suggesting that living in a large nation is equivalent to being colonized?”

          It doesn’t have to be, no. If, however, the government thousands of miles away acts like a Colonial power, it can be.

          “If you are then what is the distance (in miles or kilometers ) that separates a good, local gov from an evil oppressive colonizing government?”

          I would say that a good, local government is one where I can reasonably petition my government for redress of grievances and that my representative represents me. If I cannot reasonably do either of those things, I’d say that we’ve moved from this side to that one.

          “And that would make our constitution and bill of rights a horribly evil instrument of colonization?”

          Where the Constitution limits the power of the government to meddle, it is not an evil instrument of colonization. See, for example, The Bill of Rights (you’ll note a great deal of “the government can’t do X” rather than other phrasings… for some reason, the framers of the Constitution were really big on local control and didn’t really like the whole “distant governments making local decisions).

          “And any enforcement of the constitution is colonization.”

          I have seen the Constitution “enforced” precious few times. For the most part, I’ve seen it ignored… and if it’s paid attention to, it’s to the phrase “interstate commerce” (read up on Wickard v. Filburn) or “General Welfare”… and how that allows the government to ignore, among other things, The Bill of Rights.

          “Why are people far away some how acting as “our bettors” and locals all good and noble?”

          They aren’t necessarily. But I would rather put my trust in a local government than in a distant one. If I hated my local one, I could always move to a different local one. If I hated my distant one, I could listen to some wag point out that I should love it or leave it… and then watch in horror as the government invades another country in order to instill democracy there too. Surely Iraq deserves to be run by Americans too, right?

          “It sounds like people who are far away are somehow inherently evil?”

          Instead of “evil”, I’d rather say “people who shouldn’t be telling me how to live.” You know how we shouldn’t be telling Iraqis how to live? I extend that to groups like “Coloradans” and “Michiganders” and “Canadians”.

          “Can’t people who don’t live near you be good people doing things for good reasons?”

          Sure. But you’re as likely to end up with carpetbaggers and a situation similar to Iraq.Report

          • Avatar lebecka in reply to Jaybird
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            says:

            This is just dumb. Your representative is representing you– if you don’t like him/her, work to elect a new one you like in the next election.
            The constitution is enforced everyday, and your pretending that it’s not is just silly and childish.

            You seem upset because pro-abortion forces won this argument. Organize and agitate. Or better yet, help women who are thinking about abortion by finding solutions for their problems.

            Saying things doesn;t make them true.Report

            • Avatar Jaybird in reply to lebecka
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              says:

              I was planning on responding to this reply with another essay, but instead just wrote a bunch of assertions and insults. I then erased them and wrote this as I suspected that anything I wrote wouldn’t really matter.Report

  22. Avatar matoko_chan
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    says:

    lol
    as a hereditary republican, I AM the elephant’s child.

    But there was one Elephant–a new Elephant–an Elephant’s Child–who was full of ‘satiable curtiosity, and that means she asked ever so many questions.

    My question is…. this time…..why are you comparing citizens bound by the rule of law in “heartland” America to Kipling’s savages?Report

  23. Avatar Freddie
    Ignored
    says:

    I should try to remember to thread my comments.Report

  24. Avatar greginak
    Ignored
    says:

    J- But what is the difference between telling you how to live and making laws you don’t happen to like.

    Taxation w/o rep- Just because we have representation doesn’t mean we like what happens. There is no guarantee that our gov, at any level, will do what each individual wants. In fact living in a democracy will always result in people who don’t like what is being done. That doesn’t mean it is unfair/wrong/unconstitutional which gets back to freddie’s comments up thread. The thing we have to separate among things we don’t like is, what is unlawful/unconstitutional and things we just don’t like.

    I live in Alaska i can petition the hell out of my reps in Washington through the intertoobs, mail and phone. In this century being far away doesn’t present the same restrictions on communication.Report

    • Avatar Jaybird in reply to greginak
      Ignored
      says:

      “what is the difference between telling you how to live and making laws you don’t happen to like.”

      Rights.Report

      • Avatar lebecka in reply to Jaybird
        Ignored
        says:

        what a silly reply. Think of something worthwhile before you hit send.
        You sound like a spoiled baby.Report

        • Avatar Jaybird in reply to lebecka
          Ignored
          says:

          Yes. Most of my replies consist of one word. I am sorely chastened.

          So, fine, I’ll expand.

          The very concept of “Rights” is the difference between “telling someone how to live” and “legislation I don’t like”. If a law does not infringe on my (or your, or anyone’s Rights) and I don’t like it, then it’s merely a law I don’t like. If, however, it’s a law that *DOES* infringe on my (or your, or anyone’s Rights), then it is a law “telling other people how to live”.

          The laws forbidding gay marriage are an excellent example.

          We all agree that two dudes have the right to live in the same house.

          We all agree that two dudes, if it’s consensual, have the right to share the same bed.

          We all agree that two dudes have the right to have a ceremony in the basement of the Unitarian Church.

          The laws that say that these guys aren’t “really” married are laws that qualify as people telling other people how to live.

          Now, I suppose, you would like to point out that individuals don’t have rights, but groups of people have conflicts and the more powerful groups get to impose their will upon the less powerful. (That’s generally the argument that I have seen from persons offended when others assert the existence of “Rights”.) Hey, you may be right. I’ve never seen this argument from people who consider themselves likely to end up in the weaker, minority group… it always comes from people who consider themselves part of the stronger group of individuals.

          It’s like watching Dallas SWAT (a show I have seen no more than 5 minutes of)… I have an acquaintance who said that the show was “awesome”. He described the exploits of the SWAT team and their efficiency. When I tried to watch the show, I couldn’t help but think “that could be my house” and I got upset and changed the channel.

          Some people identify with SWAT. Some people identify with the homeowners.

          I’m an individual in the latter camp.Report

  25. Avatar Dave
    Ignored
    says:

    In fact living in a democracy will always result in people who don’t like what is being done. That doesn’t mean it is unfair/wrong/unconstitutional which gets back to freddie’s comments up thread. The thing we have to separate among things we don’t like is, what is unlawful/unconstitutional and things we just don’t like.

    There has not been a single liberal I have ever come across that can come up with an articulate, cogent and intellectually consistent way of doing this, and I don’t expect to see that change. Conservatives, to their credit, can. They simply (and wrongly) assume that we should hold a higher standard to those rights enumerated in the Constitution as well as those “deep rooted in our nation’s history and tradition” and throw the rest to democratic process. Funny enough, that used to be the liberal way prior to the Griswold case and Douglas’ moronic penumbras and emanations.

    Can’t say the same for my friends on the Left. If they’re not bearing their fangs the second someone suggests that abortion isn’t constitutionally protected, they are tripping themselves over the basic language of the 2nd Amendment. In between those flights of fancy, they talk about this grand right to privacy yet mysteriously limit that to intimate associations between individuals and ignore long standing common law rights or basic associational rights (see Boy Scouts v Dale).

    Do you think you’re up for the challenge?Report

    • Avatar Jaybird in reply to Dave
      Ignored
      says:

      I am a firm believe in penumbras and emanations.

      Griswold was decided correctly… though I would have preferred a legislature with enough potence to pass a law saying that people can buy stuff if they want.

      In the absence of such a law, however, a supreme court saying that people have rights will have to do as a necessary check/balance.

      The problem is that the ruling is misinterpreted as “the government telling people how to live” rather than “the government telling people to stop telling other people how to live”.

      A presumption of liberty sees Griswold as a step in the right direction.

      A lack of a presumption sees Griswold as “this side” sticking it to “that side”.Report

  26. Avatar mathernoble
    Ignored
    says:

    It’s worth noting, over and over, that the uhhh folks complaining here that they’ve been intrusively stripped of their democratic right to local self-determination at the level of the state, county or whatever, want to turn around and tell other people what to do at the level of the vagina, Fallopian tubes, ovaries, and uterus. These are the facts on the ground, while the most compelling arguments on the banning side are, while legitimate (like this thread on civics,) mostly made-up .

    I get yelled at on Shakesville as much as the next guy, but seriously. I’m tired of this shit.Report

    • Avatar Jaybird in reply to mathernoble
      Ignored
      says:

      While I absolutely believe that “Privacy” covers the whole “right to have an abortion” thing, I sympathize with the attitude that the unborn deserve some measure of legal protection (as many powerless entities deserve).

      I mean, are you troubled, at all, by the gender imbalance when it comes to babies aborted?

      Or is the fact that more female skintags are removed than male skintags a price that we can’t even question whether it’s worth paying lest we be accused of misogyny?

      There are legit reasons to oppose abortion.

      The fact that there are some yahoos out there who want to return to 1950’s Stepford does not change the fact that there are legit reasons to oppose abortion.

      And I say that as someone who supports abortion rights up to and including the moment of crowning.Report

  27. Avatar greginak
    Ignored
    says:

    uhhh yeah Dave, if i get your point. Yes i think I and most liberals can tell the difference just fine. However i am not egotistical to think that everybody will think the same way i do. And because somebody disagrees with me does not mean they don’t understand or believe in the constitution. People are always going to disagree about the constitution.

    PS I actually do think abortion is a privacy issue protected by the constitution. I don’t think the 2nd amendment says there shouldn’t be background checks to buy a gun.Report

    • Avatar Dave in reply to greginak
      Ignored
      says:

      I’m sorry greginak, where did I say that background checks were violative of the Second Amendment? In fact, where I have ever said that constitutional rights are not subject to certain forms of regulation?

      You will not find me advocating for the absolutism of rights and suggest that our rights are not beyond reasonable regulation. What you will likely find is disagreement between us as to what constitutes a reasonable regulation.

      Whether I am having this discussion with conservatives on same-sex marriage or with liberals on property or contract rights, it comes down to the same basic principle: reasonable regulations on the exercise of liberty have to serve a valid public purpose (public health, public safety, general welfare, etc.). You still reach the same result in the Griswold-Roe-Lawrence line of cases.

      I don’t believe in a “right to privacy”. I believe in a broader right to liberty which respects the right of the individual and believes states need a damn good reason to regulate those liberties. We get to the same place but I would argue my view is more expansive than yours.Report

  28. Avatar greginak
    Ignored
    says:

    Jay- Do they track the sex of aborted fetuses???Report

  29. Avatar Dave
    Ignored
    says:

    Jaybird,

    I think the court certainly reached the right decision in Griswold but the penumbras language is just plain awful. It is not a presumption of liberty but rather an attempt to explain privacy interests as part of the enumerated rights of the Bill of Rights. Justice Goldberg’s concurring opinion citing the Ninth Amendment was closer to the money.

    Had the Court relied on Meyer and Pierce (as opposed to attempting to characterize them as First Amendment cases), it would have been a simple 14th Amendment Due Process case and the SCOTUS would have simply suggested that the law exceeded the state’s power. Unfortuneately, the Court did away with that by the late 1930’s when the Progressives achieved a majority on the Court and transformed constitutional doctrine into what it is today.

    I should probably commend Justice Black because at lease his dissent was consistent with the Footnote Four doctrine the Progressives themselves developed and then conveniently abandoned (they were right to do so both here and Roe but I’d rather see a more expansive and consistent application).Report

    • Avatar Jaybird in reply to Dave
      Ignored
      says:

      Word.

      I had high hopes for the eventual repeal of Wickard when Ashcroft v. Raich went to the SCotUS… but 3-6 isn’t enough to revisit. And, out of those 3, Thomas is the only one still on the court (and, by extension, the only one worth a damn).Report

      • Avatar Dave in reply to Jaybird
        Ignored
        says:

        The irony about Gonzales v Raich was that Scalia was in the majority. Why conservatives hold him in high regard I’ll never know.

        All this talk about constitutional law, abortion, and democracy and not a single word about Gonzales v Carhart.

        The funny thing is that if in a hypothetical scenario Roe was overturned and a conservative Congress tried to pass a federal right-to-life act, I bet I know who’d vote against it. You mentioned him above. 🙂Report

        • Avatar Jaybird in reply to Dave
          Ignored
          says:

          “The enemy of my enemy is my friend” seems to be the only dynamic that exists in either “the liberal” or “the conservative” camps.

          “Hey, this guy (or gal) is driving the other folks nuts! WE SHOULD HIRE HIM!!!!”

          And both sides end up with a guy (or gal) that isn’t worth a damn.Report

  30. Avatar mds
    Ignored
    says:

    It’s quite simple. Social conservatives believe that abortion is murder, and it should be left up to state legislatures to decide whether such murders are criminal acts. And residents of states in which it is banned as murder will still be free to travel to states where such murder is legal to obtain abortions, and face no consequences when they return home after crossing state lines to commit a felony. Also, any attempt to impose a federal abortion ban, which due to states’ rights social conservatives wouldn’t do anyway despite the whole “murder” thing, would run afoul of Justice Thomas, who doesn’t believe the federal government should be in the business of banning abortions. This all seems much more straightforward than our current frou-frou about “penumbras,” “trimesters,” “individual rights,” and the like. So why not seek to make it a reality? If nothing else, abortion protestors wouldn’t then bother traveling to states where abortion is still legal in order to harass people, and doctors would no longer get shot for performing legal medical services. And if it works, we then extend it to other supposed “individual rights” that social conservatives find morally abhorrent, making them subject to bare majorities in state legislatures too (Lawrence v. Texas still rankles me). Everybody wins.Report

  31. Avatar Kyle
    Ignored
    says:

    Maybe it’s the because I’m reading this at 3am but I’m struck and a bit amused by the superficial similarities between Freddie’s argument and Justice Scalia’s dissent in Romer v. Evans.

    Anyway, (and maybe this is just early morning/late night ramblings) it seems to me that while freddie’s general point rings true, it glosses over a meaningful distinction between disputes over political questions and procedural ones.

    Abortion is still subject to the democratic processes of our self-governance, but it is no longer exclusively subject to political deliberation and that ain’t hay. In fact, it’s the latter that I think is the core of pro-life complaints.Report

  32. Avatar matoko_chan
    Ignored
    says:

    Look.
    McArdle, Douthat and Anne Coulter all have the same argument– Roe should be overturned because it drives the pro-life jihaadis into fanatical terrorist practices which aren’t really their fault because they have tried and tried to change the law.
    Douthat et al are mendacious douchebag-terrorist apologists.
    In conclusion, my substrate limited little conservo droogies, Roe has 68% support among the electorate and federalism is simply localized mob-rule, which the Supremes understandbly think is verbotten by the Constitution and the Bill of Rights, see Loving vs Virginia, Brown vs Board.
    The only sapients that can support Douthats argument are either so intellectually limited (the prolife base and likely Ms. Coulter) as to naturally support the cognitive dissonance inherent in its tropes, or so deeply intellectually dishonest (see McArdle, Douthat) that they can employ mendacious pretzel logic to endorse it as a form of terrorist apologia.Report

  33. Avatar Dave
    Ignored
    says:

    Matoko,

    Brown and Loving were not rejections of federalism but rather rejections of illegitimate acts of state governments under the 14th Amendment. Remember, nothing in the Tenth Amendment (a nice summary of what federalism is supposed to be) supports the so-called “states rights” (an obnoxious term as it is) position. There are some issues that are simply beyond the reach of simple democratic majorities. Bork’s claim that majorities have the “right” to rule simply because they are majorities is nonsense. Not only does the 14th Amendment foreclose that possiblity, but one can examine state court cases from the 19th century prior to the 14th Amendment and see state courts reject this notion.

    Federalism addresses only those powers that are legitimate. If you’re looking for the SCOTUS rejecting federalism, start with Gonzales v Carhart.

    One can read Stephen Breyer’s Active Liberty and understand why left-leaning jurists don’t like federalism. It has less to do with “localized mob rule” and more to do with avoiding the proverbial “race to the bottom” (see Hammer v Dagenhart).Report

  34. Avatar Nora Carrington
    Ignored
    says:

    why should might rights be different in Mississippi than they are in Washington? No one would suggest for a moment that it would be fine for MS to forbid interracial marriage — because it’s politically popular.

    When are men going to finally get it through their heads that women are human beings?Report

  35. Avatar matoko_chan
    Ignored
    says:

    Gratz on the Sully link, my habbibi.
    Sully gets it.
    This is the same dumb failcake that Coulter served up when the last prolife terrorist was being sentenced for murder.
    Conor and Douthat and McArdle can tart up Coulters failcake all they want with faux-lucid verbage and terrorist apologia but it is still a whore’s argument and they are still intellectual whores for spreading it again.Report

  36. Avatar James
    Ignored
    says:

    “Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade- pass a constitutional amendment criminalizing abortion. “

    Ah! So the only way to wrest abortion from the Supreme Court is to pass a constitutional amendment that is as ham-fisted and universal as the SCOTUS’s defacto constitutional amendment. The chances of that are effectively zero. The fact is that Americans are ambivalent about abortion. Thus, the ability to create a patchwork of laws regulating the abortion procedure, it’s practitioners, and the protections of a patients is what the People want and the only thing they will accept. What they think the patchwork should be varies as you move around the country. They’d be fairly restringing in Louisiana and they’d practically pay people to have the procedure in Massachusetts. You’d have as much chance to pass a constitutional amendment criminalizing abortion as you would passing such an amendment to outlaw handguns.

    If resolving this issue with a constitutional amendment was so easy why didn’t the 7 SCOTUS justices suggest that in 1973?Report

  37. Avatar Barry
    Ignored
    says:

    “….Ross Douthat repeats once again the pro-life canard that Roe v. Wade has somehow taken abortion out of the democratic process. This is simply not true, no matter how many times those opposed to abortion repeat it. Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade– pass a constitutional amendment criminalizing abortion. ”

    Actually, there’s a method which would be much easier to achieve – have a majority of the Supreme Court overturn Roe v. Wade, or (much more likely) gut it like a fish, until it didn’t do anything but sit in the history books as the textbook definition of a dead article.

    For example, if 7 of the 9 Supreme Court justices were Republican (i.e., the situation for ~three decades now), then even if two ‘defected’, that’d still leave a 5-justice GOP majority block.

    As for ‘stare decisis’, the Rhenquist/Scalia/Thomas court was notorious for being ‘originalist’, and not unduly bound by previous precendents. And after Bush v. Gore, it’s no longer honestly deniable that when five GOP justices *really* want something, there are no rules (how many other Supreme Court decisions state that they are not precedents?).

    And the additon of Roberts and Alito to the Supreme Court hasn’t slowed down the ‘flexibility’ of the GOP block; we’re seeing the legal system be rewritten to suit Ordo Dei, in many areas – but not abortion.Report

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