Just Wow! Draft Supreme Court Opinion

Discussion in 'Political Discussions' started by Charles Fout, May 3, 2022.

  1. nosborne48

    nosborne48 Well-Known Member

    President Biden says Congress should enact Roe type abortion rights into law. Well...that's sort of the Supreme Court's point. Making legislation is the business of legislatures not courts. Having said that...I don't think Congress will do anything of the sort and even if they tried I have my doubts about whether Congress has the power to legislate in this area. No delegated power listed in Article 1 Section 8 is even remotely connected to domestic relations law.
  2. nosborne48

    nosborne48 Well-Known Member

    Interesting question...suppose the U.S. Supreme Court does reverse the decision on same sex marriage. Some states will enshrine the right in their own law while others will ban it outright. What happens with full faith and credit?
  3. Acolyte

    Acolyte Active Member

    I suppose my point was that when we speak of diversity, we are often looking only at outward, visible traits...which ultimately are the least important in most situations. Representation matters - but it's only one TYPE of diversity. There is diversity of thought, diversity of core values, and diversity of experience, but those are often overlooked for the sake of appearing "diverse" in representation.
    Johann likes this.
  4. SteveFoerster

    SteveFoerster Resident Gadfly Staff Member

    Since when has Congress felt constrained by Article 1 Section 8?
  5. nosborne48

    nosborne48 Well-Known Member

    Well frankly, that's exactly the point! The U.S. federal government essentially shifted itself from being a limited national government comprising a union of otherwise sovereign states into the practically unlimited sovereignty we see today.

    A mental exercise in my law school was to think of a power Congress unquestionably does not have that resides only in the State Legislatures. The best we could come up with was that a State has the right to select its capital location. Maybe.

    I am not suggesting whether this growth of federal power is a good and necessary thing or a cancer upon our society. What I think is pretty clear, though, is that our constitutional structure does not support the status quo.
  6. nosborne48

    nosborne48 Well-Known Member

    Some major political complaints come from this disconnect, too. Take the Senate. If the federal government is seen as a limited government comprising a union of otherwise sovereign states, each State having equal representation in the Senate makes sense. But if the fundamental governance of the populace comes from the federal government it doesn't make sense and in fact doesn't work very well. Ditto the Electoral College and what the constitution says about how Electors are chosen.

    In theory, the fundamental level of government is the State. States are not provinces. They are not subdivisions of the national government. States are individual sovereign entities. Rather, the people are supposed to govern themselves in their states and through their state governments.

    Does this model work anymore? I don’t know but I also doubt that we're following this model very closely anymore.
  7. Rich Douglas

    Rich Douglas Well-Known Member

    I'd be fine with this in practice, except for three things.

    First, a confederation was tried (twice) and worked neither time. Just commerce alone would be a nightmare without national standards. Imagine all the other things in our society dependent upon a national standard. Monetary and financial systems. The military. International affairs.

    Then, there's national identity. I identify as an American. I've lived in California, Texas, Nevada, Massachusetts, Virginia, and Arizona. But I'm an American who's served his country, not his state, for more than 30 years.

    Finally, even the people who cry out for "states rights" don't mean it. They're more than willing to press their version of how we should be onto everyone else, no matter what state they happen to live in.

    I understand the Constitution. I understand that it reserves specific rights to the federal government, while the rest fall to the states and to the people. But I also believe in an interpreted Constitution, and courts that make judgments based not on just the literal writing, not just based on "original intent," but also based on what the Constitution means in today's context. As society evolves so does the need to interpret the Constitution in a manner consistent with the nation we have today, not the one established in the 18th century. Thus, I reject this (presumed) decision by the Supreme Court as a failure to uphold America. There is no appeal for that, and elections have consequences, but that's my assessment.

    (Oh, if you're going to have real true state sovereignty, then you're going to need a lot of walls and border checks throughout the nation. "Let me see your traveling papers, please.")
    Rachel83az likes this.
  8. Bill Huffman

    Bill Huffman Well-Known Member

    Label me impressed that you remember back that far when the dinosaurs were roaming the earth! ;):cool::)
  9. nosborne48

    nosborne48 Well-Known Member

    Oh no. Dinosaurs were still a couple hundred million years in the future!:rolleyes:
  10. nosborne48

    nosborne48 Well-Known Member

    The late unlamented Justice Scalia actually SAID that states have the residual right to patrol their borders against incursion by anyone not lawfully in the country. Heck, I remember California agricultural checkpoints from my childhood.

    No, we won't need travel checks because freedom of movement and control over interstate commerce is granted solely to the federal government under the current constitution. So are money and naturalization.

    Look, I carefully didn't state an opinion as to how things should be. I merely described how things are intended to be under the existing constitution.
  11. nosborne48

    nosborne48 Well-Known Member

    We are now being told to leave the courthouse early due to a threat of large and possibly dangerous demonstrations. My Court has nothing to do with all this and New Mexico places no restrictions on abortion but to the public, a courthouse is a courthouse, a black robe is a black robe, and a judge is a judge.
  12. Bill Huffman

    Bill Huffman Well-Known Member

    I really appreciate you sharing your expert legal opinion on the matter. It was very enlightening!
  13. SteveFoerster

    SteveFoerster Resident Gadfly Staff Member

  14. Rich Douglas

    Rich Douglas Well-Known Member

    The state still conducts these. But they're for agriculture. The US Border Patrol also operates checkpoints on highways and freeways near the border with Mexico, but not on the state line like California Ag does.
  15. nosborne48

    nosborne48 Well-Known Member

    Nothing happened. I suppose folks realized that the draft opinion will have (literally) zero effect here in New Mexico. A couple of Legislatures ago, our criminal abortion statute was repealed (to howls of protest by the local bishops.) We are in a place where there is no regulation at all which I personally think isn't a good idea. Law abhors a vacuum.

    Been thinking about all this...I wonder if any State Supreme Courts will announce that the right to an abortion is guaranteed by their State constitutions?
  16. SteveFoerster

    SteveFoerster Resident Gadfly Staff Member

    IANAL, but wouldn't they have to have a case before them on that subject to make such a ruling?
  17. Rachel83az

    Rachel83az Well-Known Member

    I heard that California is trying to get an amendment to their state constitution pushed through that guarantees the right to an abortion. I don't know about any other states.
  18. nosborne48

    nosborne48 Well-Known Member

    Oh, they will. If the U.S. Supreme Court adopts the draft opinion, abortion issues will become strictly a matter of State law. The highest authority on any State's law is that State's Supreme Court (by various names; in New York it's the Court of Appeals.) Challenges to State laws are filed every day in State trial courts.

    Now, what I just said is probably untrue. The U.S. Supreme Court isn't going to be allowed to wash its hands of the whole mess. Some states are passing bans that have extra-territorial effect or burden interstate travel, clearly violations of federal law. The U.S. Supreme Court will have to deal with those issues. Criminalizing abortion when the mother's life is at stake implicates the mother's (obvious) federal right to life. That issue also will go through the U.S. court system. So no, abortion won't be strictly a matter of State law but the way these cases will get to the U.S. Supreme Court will be by implicating other rights. Direct challenges will be in State courts.

    This thing is a gigantic mess.
    Bill Huffman likes this.
  19. Rich Douglas

    Rich Douglas Well-Known Member

    This case is about far more than abortion. It sets the stage for rejecting any past ruling by the Supreme Court regarding interpreted rights. The next fight will be to roll back gay marriage. Birth control should follow that, possibly followed by interracial marriage. In all of these cases, the Supreme Court interpreted the Constitution in ways that ensured privacy in these matters. But the party of small government has decided to go big, and this court has no use for precedence, so all bets are off. And if it isn't explicitly mentioned in the Constitution, you can't be guaranteed it.

    Originalism: applying standards set for muskets to owners of AR-15s.

    Oh, and I notice women not being mentioned in the Constitution at all. They might want to consider the wider ramifications of this case as well.
    Rachel83az likes this.
  20. nosborne48

    nosborne48 Well-Known Member

    There is no federal ERA but there are federal statutes and considerable case law concerning women's rights. Also I am not too worried about Loving given J. Thomas's wife. As to LGBTQ yes, all that is on the table.

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