Monday, August 08, 2005
DailyKos and Griswold
Armando at DailyKos attempt to discuss Griswold, Roe and Casey, but fails to understand their complexities. It is enough for him to announce that anyone who disagrees with his position is an extremist.
Armando: "Learn to read (none / 0) The Constitution is not what is described as neutral - Rehnquist, Scalia and Thomas are described as neutral on abortion rights."
In fact, Whelen argues that the Constitution does not speak to abortion and is, therefore, "neutral" with regard to it. In the same way, he regards Rehnquist, Scalia and Thomas as neutral on abortion since they would allow the political branches of State governments to determine abortion law.
Armando: "Rehnquist, Scalia and Thomas disagree with this consensus view, of over 100 year vintage. That is not "neutral." That is extremist."
In fact the "consensus view" is from the opinion of only three justices of the Court and represents a position carefully and specifically rejected by the Court in Griswold. The Griswold majority opinion tried mightily to avoid the substantive due process position presented in Casey.
The Griswold Court pointed to "penumbras, formed by emanations from [the Bill of Rights] that help give them life and substance." Griswold, p. 484. They rejected use of Lochner v. New York as the basis of the opinion, since its use of substantive due process had long been held in disrepute.
The Griswold majority contended that "We do not sit as a super-legislature to determine the wisdom, need, and proriety of laws that touch economic problems, business affairs, or social conditions." This, of course, was the criticism of Lochner, that substantive due process permitted the Court to reject New Deal legislation simply because the justices had different opinions as to economic policy.
The three justices in Casey seem to have gone where prior Courts feared to go by embracing substantive due process, "The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercise: reasoned judgment."
To attempt to describe that position as a "consensus" view with a 100 year history has no basis whatsoever in reality. As recognized by the Griswold Court, it returns to a concept long scorned when applied in the economic area. To suggest that Rehnquist, Scalia and Thomas are extremist for adopting the position of jurists of the standing of Justices Hugo Black and Potter Stewart shows either a lack of legal understanding or a mere application of political cant.
Armando: "Now Whelan has a right to believe that these views, which he attributes to Rehnquist, Scalia and Thomas (and Roberts), are correct. But he can not in good faith label them 'neutral.' That is egregious spin. These views are not neutral. They are extremist."
You obviously do not understand Whelen's point. Whether the Justices' opinion is mainstream or extreme is immaterial. Whelen merely indicates that their view and that of the Constitution is neutral as to the right of State legislatures to determine abortion policy by law.
Your point that a Supreme Court opinion found the Constitution to create a right of privacy carries as much weight as a commentator's argument that the Plessy Court found a "right of separate but equal" in the Constitution.
The extreme difficulty of the Court in Griswold, Roe and Casey to articulate a coherent basis for the opinions suggests the lack of clear Constitutional support for the opinions. Neither side of the Court in the debate in the cases was extreme. They merely disagreed in a very difficult area of the law.
Armando: "Learn to read (none / 0) The Constitution is not what is described as neutral - Rehnquist, Scalia and Thomas are described as neutral on abortion rights."
In fact, Whelen argues that the Constitution does not speak to abortion and is, therefore, "neutral" with regard to it. In the same way, he regards Rehnquist, Scalia and Thomas as neutral on abortion since they would allow the political branches of State governments to determine abortion law.
Armando: "Rehnquist, Scalia and Thomas disagree with this consensus view, of over 100 year vintage. That is not "neutral." That is extremist."
In fact the "consensus view" is from the opinion of only three justices of the Court and represents a position carefully and specifically rejected by the Court in Griswold. The Griswold majority opinion tried mightily to avoid the substantive due process position presented in Casey.
The Griswold Court pointed to "penumbras, formed by emanations from [the Bill of Rights] that help give them life and substance." Griswold, p. 484. They rejected use of Lochner v. New York as the basis of the opinion, since its use of substantive due process had long been held in disrepute.
The Griswold majority contended that "We do not sit as a super-legislature to determine the wisdom, need, and proriety of laws that touch economic problems, business affairs, or social conditions." This, of course, was the criticism of Lochner, that substantive due process permitted the Court to reject New Deal legislation simply because the justices had different opinions as to economic policy.
The three justices in Casey seem to have gone where prior Courts feared to go by embracing substantive due process, "The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercise: reasoned judgment."
To attempt to describe that position as a "consensus" view with a 100 year history has no basis whatsoever in reality. As recognized by the Griswold Court, it returns to a concept long scorned when applied in the economic area. To suggest that Rehnquist, Scalia and Thomas are extremist for adopting the position of jurists of the standing of Justices Hugo Black and Potter Stewart shows either a lack of legal understanding or a mere application of political cant.
Armando: "Now Whelan has a right to believe that these views, which he attributes to Rehnquist, Scalia and Thomas (and Roberts), are correct. But he can not in good faith label them 'neutral.' That is egregious spin. These views are not neutral. They are extremist."
You obviously do not understand Whelen's point. Whether the Justices' opinion is mainstream or extreme is immaterial. Whelen merely indicates that their view and that of the Constitution is neutral as to the right of State legislatures to determine abortion policy by law.
Your point that a Supreme Court opinion found the Constitution to create a right of privacy carries as much weight as a commentator's argument that the Plessy Court found a "right of separate but equal" in the Constitution.
The extreme difficulty of the Court in Griswold, Roe and Casey to articulate a coherent basis for the opinions suggests the lack of clear Constitutional support for the opinions. Neither side of the Court in the debate in the cases was extreme. They merely disagreed in a very difficult area of the law.
# posted by Thomas A. Becket : 1:16 PM
