Redstate

If the pandas are so despondent that they want abortions, who are we to tell human beings that it's murder?

If the reason for surrender on the abortion debate is because the argument MIGHT or even HAS become a school yard shouting match, then which other values must we surrender?

Gun ownership? That's a pretty loud argument. The war against terror and murderous Islamist? Wooo, way to loud.

Relying on local beliefs and practices has danger, as well. How many evils have been perpetrated because of local beliefs? Jim Crow?

If life is precious (I believe it is) and unborn life is also precious (I believe it is), the the fight is noble and the cause is just. Destruction of life because it is inconvenient is abominable, whether the locals are upset or not.

...life, liberty, and the pursuit of happiness.

Seems pretty clear to me.

www.scottbomb.com

Roe is intellectual garbage because it has no anchor in the text of the Constitution; it was worse than a crime because, like its antecedent Dred Scott, it gratuitously declared settled an issue about which there was and is no consensus; it is an act of extreme folly to leave people no out save war.

How did Dred Scott cause the Civil War? And was Dred Scott's problem that it "gratuitously solved a problem," or that it created a new Constitutional right (substantive due process) to resolve a brewing problem?

But it is no less folly to insist that policy must follow the view that abortion is murder. From earliest times decent people have differed on when a fetus becomes a full moral actor, and there won't be a consensus any time soon.

And to think that just a moment ago, you were lecturing me on the evil of Dred Scott. Pray tell, given that men of good faith believed slavery licit, even after the close of the Civil War, on what grounds could one oppose it? After all, from earliest times, decent people differed on whether humans should be enslaved or not, and even now, there isn't a consensus on the issue.

To oppose Roe on prudential grounds makes sense; to declare abortion under all circumstances a moral abomination is the elevate the perfect over the good, and to lessen the likelihood that Roe will be reversed.

I don't believe I said anything about abortion under all circumstances to be a moral abomination.

Whether or not Roe survives, legal abortion will remain the rule in most of the country.

If there will be no change in the abortion regime, then the only reason to oppose Roe and its progeny is mere aesthetics.

The "Is!" "Is not!" debate over whether abortion is murder, redolent of schoolyard slanging matches, will only delay the day when, once again, local majorities will determine the law in accordance with their beliefs.

There are a number of presuppositions bound up in this, which I'll put to the side, and merely note that (1) if a majority of this country wanted to be able to set its own abortion policy, Roe would be good law but a dead letter; and (2) again, if those local majorities are merely going to codify Roe, then what we're quibbling about is whether a red flag comes up on a Westlaw citation of Roe. (Actually, one already does.)

The purist approach may feel good to it holders but, as pro-Roe fanatics are discovering in connection with their insistence that even partial birth abortion must go untrammled, it is off-putting to the majority.

Baby steps.

-----------
We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

Ridding the books of Roe would be more than mere aesthetics even if abortion law throughout the country remained as though set in amber; Roe is precedent, and a bad building block. It is desirable to expunge it, if only that it not tempt some future panel to build upon it in ways we cannot now imagine.

But getting rid of Roe won't leave abortion law as it stands today. There will be jurisdictions where abortion is once again illegal, under most, perhaps all, circumstances. There won't be many of those, but I'd think those who find abortion morally repugnant would view even one as an improvement. There will be many jurisdictions in which abortion, while legal, is subject to restrictions Roe wouldn't permit. And there will be some in which abortion law remains as it is today, virtually unrestricted.

Incidently, in a "be careful what you wish for" aside, it wouldn't surprise me if the post Roe America didn't find abortion more readily available than it is today, since I suspect that, as passions cool, doctors will be more willing to perform abortions.

In any case, the analogy between Dred Scott and Roe is strong; both have the Court intervening in an issue of great public moment, involving high levels of passion, as to which nothing can be resolved empirically, by declaring one side thereafter powerless to seek relief through normal, peaceful political action, all without warrant of clear, Constitutional language. In the case of Dred Scott, any number of contemporary observers saw the decision as leaving war the only remaining avenue. We should not underestimate the value of the emotional outlet the availability of legislative action affords, particularly in a feseral system; knowing that there will be another day, or that there's another, more congenial regime next door, is a great safety valve, and when judges snatch this away, they play with fire.

The slavery question is illuminating in another repect. Lincoln saw slavery as the moral horror it was, yet he was prepared to abide it indefinitely, if that was the price of keeping the union together. I don't think we face civil war over Roe, but I am certainly willing to abide some abortion, if that's the price of getting rid of Roe and maintaining a relatively civil society. There are those who prefer John Brown's approach. Ideological purists gave us one civil war--that should be enough.

Ridding the books of Roe would be more than mere aesthetics even if abortion law throughout the country remained as though set in amber; Roe is precedent, and a bad building block. It is desirable to expunge it, if only that it not tempt some future panel to build upon it in ways we cannot now imagine.

Let's not wax overeloquent, to the point of obfuscation, here. Roe is already bad law. It has no precedential value, except what the Court chooses to accord it; and we've already seen that stare decisis is, as they say, fo' suckas. That decision's weight is, in theory, nothing before Casey -- and yet, if a panel of five should decide otherwise, it is the most important case ever. So would be, say, Plessy, should they so will it.

I like having a clean constitutional jurisprudence as much as the next aesthete, but it's hardly worth all the Sturm und Drang of our abortion wars merely for that.

But getting rid of Roe won't leave abortion law as it stands today. There will be jurisdictions where abortion is once again illegal, under most, perhaps all, circumstances. There won't be many of those, but I'd think those who find abortion morally repugnant would view even one as an improvement. There will be many jurisdictions in which abortion, while legal, is subject to restrictions Roe wouldn't permit. And there will be some in which abortion law remains as it is today, virtually unrestricted.

Funny, you said more or less precisely the opposite above.

Incidently, in a "be careful what you wish for" aside, it wouldn't surprise me if the post Roe America didn't find abortion more readily available than it is today, since I suspect that, as passions cool, doctors will be more willing to perform abortions.

While I have no doubt that some of the resistance to legalized abortion is from being told what the law is by seven (then five) justices who are not directly accountable to the electorate, I rather suggest that most of the problem comes from the nature of what the procedure is. Your mileage, as they say, may vary.

In any case, the analogy between Dred Scott and Roe is strong; both have the Court intervening in an issue of great public moment, involving high levels of passion, as to which nothing can be resolved empirically, by declaring one side thereafter powerless to seek relief through normal, peaceful political action, all without warrant of clear, Constitutional language.

While I appreciate Scalia's dissent in Casey at least as much as the next fellow, he was making a rhetorical point, which I don't believe he meant should be taken literally. Two things flow from this:

(1) Dred Scott effectively undid one component of the second Federal compromise that balanced out slave states' interests with non-slave states' interests. The method by which it did so was to declare that a slaveholder could not be denied his property merely by the movement of that property into a free state or territory. To get there they had to create something called substantive due process, a new thing in the history of the Constitution. This isn't what upset Yankees -- the party that was actually upset about the decision -- but rather that the carefully crafted Great Compromise was being yanked out from underneath their feet. Reasonable irritation, if you ask me.

(2) The North didn't start the war. The South did, and not because of secession (which was arguably put in motion because the North felt that future Great Compromises were pointless, and also arguably for thousands of other reasons), but because the idiots decided to try artillery practice on Fort Sumter.

In other words, all of this precious rhetoric about Dred Scott is terribly interesting, but utterly afactual.

In the case of Dred Scott, any number of contemporary observers saw the decision as leaving war the only remaining avenue.

I'd appreciate a citation showing that the people who actually started the war -- indeed, that anyone of any prominence then living -- believed this. For the most part, this is mere ex post facto rationalizing.

We should not underestimate the value of the emotional outlet the availability of legislative action affords, particularly in a feseral system; knowing that there will be another day, or that there's another, more congenial regime next door, is a great safety valve, and when judges snatch this away, they play with fire.

I couldn't agree more. However, we should not treat mere form as a panacea for a whole host of systemic ills, either.

The slavery question is illuminating in another repect. Lincoln saw slavery as the moral horror it was, yet he was prepared to abide it indefinitely, if that was the price of keeping the union together.

And freeing the slaves was a wonderful way to attack the Confederacy. You still haven't explained why it should be outlawed, given the lack of consensus on the matter.

I don't think we face civil war over Roe, but I am certainly willing to abide some abortion, if that's the price of getting rid of Roe and maintaining a relatively civil society.

But for Wales?

There are those who prefer John Brown's approach. Ideological purists gave us one civil war--that should be enough.

Delightful straw man. Do you actually have anything to your credit besides empty, overblown rhetoric?

-----------
We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

It's bad form to misquote people you intend to charge with a lack of intellectual rigor, and probably foolish. I didn't say Dred Scott "caused the Civil War," nor did I say it "gratuitously solved a problem." It certainly did take out of play legislative efforts to bridge the gulf between the pro and anti-slavery forces, and it is a commonplace of the history of the period to mark it as a milestone in the run-up to the war. The parallel to Roe, which likewise has left an apparently permanent fissure in our society by denying Americans the right to attempt to shape the abortion regime in accordance with their beliefs, seems obvious.

But if the comparison of Dred Scott to Roe offends you, by all means drop it; perhaps you find it a disservice to the memory of Justice Taney, or does it do Roe an injustice? Who cares? And if you think it's not worth getting rid of Roe if abortion is going to remain more or less legal in most of the United States anyway, so be it--because it will remain legal. And how this contradicts anything else I've said is beyond me.

As to why slavery "should have been outlawed", given the lack of consensus on the issue, I thought I'd made it obvious: it wouldn't have been, absent the war, until that consensus emerged. Lincoln could live with that. Just as abortion, absent Roe, won't be illegal, and Americans with even a shred of Lincoln's sagacity, and no matter how morally offensive they find abortion, will understand that it can't be barred, until and unless that consensus emerges.

As to "Wales," I give up--does it fit in with the hamster thing?

[Roe] was worse than a crime because, like its antecedent Dred Scott, it gratuitously declared settled an issue about which there was and is no consensus

Those are your words. If you spoke imprecisely, or foolishly, on your own head be it.

On to the meat.

It certainly did take out of play legislative efforts to bridge the gulf between the pro and anti-slavery forces, and it is a commonplace of the history of the period to mark it as a milestone in the run-up to the war.

Don't be silly; or, better, actually read the decision. It took out of play one of the portions of one of the legislative efforts to reconcile competing interests between slave states and non-slave states.

More importantly, don't let your sixth grade history textbook guide your conversations through life. Those folks had twenty pages to discuss the immediate antebellum period, during which time they probably tossed in everything from the admissions of Texas and California to the near secession of South Carolina to the ineptitude of the Buchanan presidency. Not all of these things were causes of the war, and some were symptoms of the actual causes.

The parallel to Roe, which likewise has left an apparently permanent fissure in our society by denying Americans the right to attempt to shape the abortion regime in accordance with their beliefs, seems obvious.

Like I said, I'm a huge fan of Scalia's, and I read that dissent early and often. But his is hardly a dispositive summary of Dred Scott or the antebellum period. He hoped, apparently unwisely, that his readers would have read that case, and would know a bit more about Roger Taney -- the worst Catholic in the Court's history behind Brennan -- than that his painting hangs in Harvard's law school.

But if the comparison of Dred Scott to Roe offends you, by all means drop it; perhaps you find it a disservice to the memory of Justice Taney, or does it do Roe an injustice?

Roger Taney is sharing a lookout in the nether reaches of Hell with Harry Blackmun; no amount of scorn you can produce could even come within spitting distance of what I have for the man. My tender feelings for Harry Blackmun's monstrosity should be apparent to anyone with even minimal reading comprehension.

And if you think it's not worth getting rid of Roe if abortion is going to remain more or less legal in most of the United States anyway, so be it--because it will remain legal. And how this contradicts anything else I've said is beyond me.

(1) I did not say that.

(2) Let's find out, shall we?

(3) I weep for your reading teachers. I presume you're not old enough to have had Rhetoric; otherwise, I would say a novena for those instructors.

As to why slavery "should have been outlawed", given the lack of consensus on the issue, I thought I'd made it obvious: it wouldn't have been, absent the war, until that consensus emerged.

Funny, you start the sentence with "should," then end it with "would." The term of art is "begging the question."

Just as abortion, absent Roe, won't be illegal, and Americans with even a shred of Lincoln's sagacity, and no matter how morally offensive they find abortion, will understand that it can't be barred, until and unless that consensus emerges.

Yes, that two-century civil war that ended only with Roe was terrible. Remember how the West underwent the Second Reconstruction?

-----------
We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

Let's see. I said "Roe was worse than a crime because, like its antecedent Dred Scott, it gratuitously declared settled an issue about which there was and is no consensus." In your earlier post you claimed I said "it gratuitously solved a problem." I denied having said that, nor that Dred Scott "caused the Civil War," a claim you have now apparently abandoned sub silentio. You quote me correctly above, while implying that I wasn't previously misquoted. Yet you say I--I--have difficulty reading. Are you dyslectic?

This is a silly waste of time; if you find the comparison of Dred Scott to Roe inapt, fine--draw your own. You sound like an autodidact eager to display his pocketful of intellectual trinkets, so seize the opportunity. When your fustian has settled, though, the fact will remain: Roe or no Roe, legal abortion will be widely available in America for the foreseeable future, and people who rail about the intolerability of abortion will merely delay the day when it can at least be reined in--which simple point generated your amazing hair-splitting about the meaning of Dred Scott, as well as several paragraphs of impenetrable vituperation--such as the last, above. Bring back the Wales references, models of clarity by comparison.

I said "Roe was worse than a crime because, like its antecedent Dred Scott, it gratuitously declared settled an issue about which there was and is no consensus." In your earlier post you claimed I said "it gratuitously solved a problem."

Oh, silly me. What you clearly meant was that Dred Scott made a non-binding pronouncement that a problem -- or if you prefer, an issue about which there is and was no consensus -- had been settled. Silly me. Obviously, the real problem with Dred Scott was the dicta.

I denied having said that, nor that Dred Scott "caused the Civil War," a claim you have now apparently abandoned sub silentio.

You denied it either because you have reading comprehension problems; because you used a poor choice of words, and now realize it; because you lack the intellectual honesty to see what you said; or because you have incredible amnesia. None of these are my problem.

I have abandoned nothing, per, in, ut, or sub silentio. Your full paragraph, again, was

Roe is intellectual garbage because it has no anchor in the text of the Constitution; it was worse than a crime because, like its antecedent Dred Scott, it gratuitously declared settled an issue about which there was and is no consensus; it is an act of extreme folly to leave people no out save war.

Now, it's entirely possible -- and, having now dealt with more than one of your comments, I have to concede probable that you simply rambled with that post-semicolon statement. Those of us for whom English is our first language, however, are prone to see sentences connected by a semicolon and conclude that the writer meant to thematically link them. Assuming that's what you intended to do -- a great assumption, I concede -- then I can only conclude that you meant (a) Roe has caused a war by leaving the contending sides no alternative save war to resolve their disputes; (b) Dred Scott caused a war (silly me, I assumed the Civil War, when you clearly meant the Spanish-American War) by leaving the contending sides no alternative save war to resolve their disputes; or (c) decisions like Roe and Dred Scott cause wars by leaving the contending sides no alternative save war to resolve their disputes, but Roe and Dred Scott are curious exceptions to this rule, even though they're the named examples.

At this point, I'm open to the notion that you meant any of these.

This is a silly waste of time; if you find the comparison of Dred Scott to Roe inapt, fine--draw your own. You sound like an autodidact eager to display his pocketful of intellectual trinkets, so seize the opportunity. When your fustian has settled, though, the fact will remain:

You misunderstand (not precisely a surprise): (1) I find your entire argument devoid of original thought, and instead, merely an echo (a plagiarism?) of a profound, clever, and well-written dissent in a case that I'm not even certain you've read. (2) The entire thrust of your argument -- such as it is -- is that moral evils (assuming we can even take abortion or slavery as moral evils -- but wait for that) not only can be, but must be absorbed and accepted in order for the Union to survive. The moral repellancy of this argument -- which isn't even getting into the ahistorical silliness of it -- is merely dispositive proof that we have long passed the point where we required a modicum of moral intelligence to comment on this site. (3) That you have not even read the opinion to which you compare Roe merely compounds every conclusion in (2). (4) The underlying thought, if we may generously use that word, of your comments is that because people disagree on whether abortion is a bad thing or not, we should not outlaw it, but rather, like slavery, we should simply accept it until everyone decides it's bad. This overlooks things like the inhibitive effect of criminalizing a thing (and, curiously, abortion statistics the year before Roe and the year after might tell us something about this), why we outlaw things, and indeed, whether we should outlaw anything if anyone anywhere is in favor of it. (5) Last but not least, your use of your word-a-day calendar is misplaced -- as a rule of thumb, you shouldn't use three pages' worth of tips in the space of three consecutive sentences, when you've displayed no grasp of words beyond Instant Word Power in any of your primary comments.

Roe or no Roe, legal abortion will be widely available in America for the foreseeable future, and people who rail about the intolerability of abortion will merely delay the day when it can at least be reined in--which simple point generated your amazing hair-splitting about the meaning of Dred Scott, as well as several paragraphs of impenetrable vituperation--such as the last, above.

If Roe merely codifies the status quo -- bad law though it is (and not the way you mean, but let's leave that to the side) -- then let it stand until the heavens fall, or the nominally impossible change of heart (to which you alternatingly refer as impossible, improbable, unlikely, highly likely, and uncertain) takes place, at which time, let the masses' sudden distaste for infanticide quell it. If you are convinced that old law, since reversed, has no power to bind the Court -- and that the Court should have this say in our Republic, a priori -- then you merely contemplate an aesthetic view of the Constitution, one born of a cold detachment and perhaps an eye for beauty, but not one that understands (or has even read) the law, or that represents thought beyond a few interesting scraps as to what our Constitutional order means.

Put more simply, as references to popular (and overquoted) plays and movies of the 1960s seem to lose you, if you think overturned law and dissents from precedent cannot be the basis of future ills, you need merely read the last several Supreme Court decisions on the death penalty. If you believe that it is worth thirty plus years of determined effort merely to remove from nominal (but not effective) jurisprudence a single decision, which decision does not even hold precedential weight any more; if you believe that advocacy undermines its target (which target you believe impossible at any rate); then I bid you a fond voyage of interpretation.

-----------
We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

In many circles, when a writer puts quotation marks around words attributed to another, it is the writer's representation to the reader that the person being quoted used precisely the words within the quotation marks. In these circles, it's no good coming back later and explaining that, well, that's what the fellow "quoted" "meant," even if he didn't use those exact words.

In the circles to which I refer, this misuse of quotation marks is considered dishonest.

I don't think you meant to be dishonest. I think that, in your eagerness to quibble about anything and everything, and lack of focus on a point, you simply got carried away. Had you not chosen to slip into name-calling I wouldn't have called you on it, since, as I said, Dred Scott's aptness as a yardstick for Roe's awfulness was utterly peripheral to my point. And to yours, I think, though that's less clear, since points are something to which you have difficulty coming. You do obscure references well, though, and should take some comfort in that. You know, Wales and hamsters and all that.

-----------
We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

How could I be so foolish? It's a FETUS, not a human being. It has a heartbeat, it's own blood supply, even body parts but I can't prove it's alive... I can't prove it's human until it comes out of the womb.

Yep, no rights need apply.

www.scottbomb.com

The fetus is human of that there is zero doubt.