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FAUXTON posted:This is the part that really makes it scary. You'll have these fuckers saying it isn't a de facto ban since people in Houston could just go over to New Mexico to end a pregnancy. Well and that's a disingenuous argument on its face because if pro-life people had their way there wouldn't be a clinic in New Mexico to go to anyway. Evaluating the impact of a state's anti-abortion measures based on clinics existing in another state kind of sounds logically reasonable, but it would end up giving an incentive to GOP-controlled governments to outlaw abortion in their state sooner rather than later lest they be told they can't since too many women from surrounding pro-life states(that outlawed it sooner) rely on services in their state.
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Jul 25, 2015 16:39
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ErIog posted:Well and that's a disingenuous argument on its face because if pro-life people had their way there wouldn't be a clinic in New Mexico to go to anyway. Evaluating the impact of a state's anti-abortion measures based on clinics existing in another state kind of sounds logically reasonable, but it would end up giving an incentive to GOP-controlled governments to outlaw abortion in their state sooner rather than later lest they be told they can't since too many women from surrounding pro-life states(that outlawed it sooner) rely on services in their state. Of course it's a disingenuous argument on it's face, that's like their M. O.
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Jul 25, 2015 16:42
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It would perfectly fit GOP thinking though in that it would be a 'right' enshrined in law but in practice the ability to exercise it would be limited entirely by one's personal means so basically only for the wealthy. It's pretty much what a large segment of the GOP seem to want to turn voting into.
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Jul 25, 2015 20:30
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patentmagus posted:Roe is based on a "penumbra" of the Bill of Rights - privacy. Privacy rights seem like a quaint notion of late. It's particularly interesting in that the government may have full knowledge of every medical procedure that is covered by an insurer - especially with Obamacare in place. Correct me if I'm wrong here, but wasn't the 'penumbra' stuff from Roe supplanted by Planned Parenthood v Casey?
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Jul 27, 2015 00:52
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Bob Ojeda posted:Correct me if I'm wrong here, but wasn't the 'penumbra' stuff from Roe supplanted by Planned Parenthood v Casey? Not exactly- the penumbra material is from Griswold, which has the same root issues but has been less of a problem in part because it's had to bear less political and social weight- Griswold was about laws banning contraceptives, which isn't exactly controversial in mainstream circles anymore. It's built on the same flimsy right to privacy argument as Griswold, but the Roe majority, iirc, doesn't directly invoke it. Casey doesn't really change that interpretation- its alterations are to the specific(well, "specific") resulting standard. Because the root argumentation of the privacy right wasn't clearly defined or delimited, and because there were a bunch of legal realists involved, subsequent cases in this line of jurisprudence have always worked around the core basis of the right without explicitly defining it in legally usable terms. Instead, as in Casey, they let the basis be vague and interpret a more concrete immediate legal standard from current evidence and opinion. The resulting law isn't very stable, as a result. It's been a while, but if memory serves I thought that one of the concurrences in Griswold did a much better job of articulating a concrete privacy right. Maybe White's? Discendo Vox fucked around with this message at 01:17 on Jul 27, 2015 |
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Jul 27, 2015 01:13
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Discendo Vox posted:It's been a while, but if memory serves I thought that one of the concurrences in Griswold did a much better job of articulating a concrete privacy right. Maybe White's? drat, you got me to wade (pun intended) through Griswold. To me, it looks like there are two arguments: 1) umbras and penumbras of the 4th and 5th amendments with a touch of 1st amendment free association; and 2) 14th amendment fundamental liberty of which a person cannot be denied without due process. The 14th amendment argument applied strict scrutiny and found no sufficiently compelling state interest. I don't know if any of the Griswold arguments put privacy on a stronger footing. Especially with the redefinition of due process that "justified" killing al-Awlaki.
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Jul 28, 2015 01:23
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patentmagus posted:I don't know if any of the Griswold arguments put privacy on a stronger footing. Especially with the redefinition of due process that "justified" killing al-Awlaki. It's...not really a related analysis, except in the loosest sense.
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Jul 28, 2015 03:11
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SCOTUS Thread 2016 pre-season: umbras and penumbras
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Jul 28, 2015 03:12
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Subjunctive posted:SCOTUS Thread 2016 pre-season: umbras and penumbras And fromundas.
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Jul 28, 2015 03:18
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Ginsburg woulda written Obergefell better.
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Jul 30, 2015 19:23
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RPZip posted:It wasn't actually a Supreme Court case that Lincoln ignored, although that's a pretty common misconception. Ex parte Merryman was actually a Federal circuit court ruling, but the circuit court was headed by Chief Justice Taney. Justices also being part of the normal Federal Court structure was apparently not that uncommon back in the day. The case never made it to the actual Supreme Court. Not just not uncommon, Justices were required by law to "ride circuit" until the requirement was eliminated by the Judiciary Act of 1891.
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Jul 30, 2015 20:11
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At first I thought you meant, like, better written prose and I was like "yeah, duh." Then I read the article and it was about a better legal doctrine and I was like "yeah, duh." Kennedy is perfectly adequate. He gets a lot of attention just by pure happenstance of him being in the middle. I wish he retired instead of O'Connor.
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Aug 1, 2015 15:45
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I don't mind Kennedy
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Aug 1, 2015 16:00
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ZenVulgarity posted:I don't mind Kennedy His Obergefell decision was pretty predictably garbage and I was disappointed there was no concurrence. Walker (SF judge) paved the way for a clear ruling on the unconstitutionality of discrimination on the basis of non-conformation to gender stereotypes (eg orientation or gender expression) and Kennedy whiffed.
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Aug 1, 2015 16:22
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So with all the talk about Birthright Citizenship, the citizen clause of the 14th amendment has entered public debate again. People arguing against Jus Soli claim that a law preventing the granting of citizenship to the children of non-citizens is not incompatible with the 14th since when the 14th was passed there was no restriction on immigration, and thus no concept of an illegal/undocumented immigrant. A lot of people arguing against that interpretation are citing U.S. vs. Wong Kim Ark as explicitly interpreting the 14th as explicitly establishing Jus Soli in the United States. The people arguing against Jus Soli note that Ark's parents were both U.S. Citizens so the ruling does not apply to their arguments. Who is right here? Also, are there any good examples of the SOTUS reading a constitutional amendment counter to what we would consider the plain english meaning due to to the specific legal body in effect when it was passed? Is there any chance the current court would be sympathetic to a reading that would allow restricting the practice of granting citizenship to all children born in the United States? Chuu fucked around with this message at 10:57 on Aug 18, 2015 |
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Aug 18, 2015 10:54
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quote:This is in no small part because abortion is legal through a process that was never voted on. "Keep the very firmly in place status quo" just doesn't attract activism the way changing it does, even when the majority agrees with it Nor do they really care whether gay right gains come through elective or judicial means.
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Aug 18, 2015 12:58
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Chuu posted:So with all the talk about Birthright Citizenship, the citizen clause of the 14th amendment has entered public debate again. People arguing against Jus Soli claim that a law preventing the granting of citizenship to the children of non-citizens is not incompatible with the 14th since when the 14th was passed there was no restriction on immigration, and thus no concept of an illegal/undocumented immigrant. A lot of people arguing against that interpretation are citing U.S. vs. Wong Kim Ark as explicitly interpreting the 14th as explicitly establishing Jus Soli in the United States. The people arguing against Jus Soli note that Ark's parents were both U.S. Citizens so the ruling does not apply to their arguments. The 14th Amendment was passed to ensure, among other things, the children of former slaves, would never constitute a permanent non-citizen underclass. The 14th could not be clearer about establishing birthright citizenship: anyone born inside the US is a citizen, period, regardless of what some nutbars think.
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Aug 18, 2015 13:51
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Yeah the only way to change that would be via Constitutional amendment. Which is not happening.
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Aug 18, 2015 14:27
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I mean, that won't keep 4 justices from voting against it.
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Aug 18, 2015 14:37
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Goatman Sacks posted:I mean, that won't keep 4 justices from voting against it. Piles of poo poo that they are, I couldn't see Roberts or Scalia going for that. Alito votes for whatever the nice guys at the club think is right, and Thomas' jurisprudence is so sideways that it's hard to say where he'll fall.
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Aug 18, 2015 15:26
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Zeroisanumber posted:and Thomas' jurisprudence is so sideways that it's hard to say where he'll fall. "Only people born within the boundaries of the original thirteen colonies are granted citizenship by 14A."
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Aug 18, 2015 15:33
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No, but I think Thomas might rule you can be a citizen of the USA and not the citizen of a specific state.
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Aug 18, 2015 16:01
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Zeroisanumber posted:Piles of poo poo that they are, I couldn't see Roberts or Scalia going for that. Why? Roberts is a old fashioned Texas racist, and Scalia gets his opinion from talk radio and then has his staffers spend the next month figuring out a tortured logic to justify it.
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Aug 18, 2015 16:11
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Roberts and Scalia aren't that insane- the doctrine at issue is completely uncontroversial among people not in need of antipsychotics.
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Aug 18, 2015 16:21
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Goatman Sacks posted:Why? Roberts is a old fashioned Texas racist, and Scalia gets his opinion from talk radio and then has his staffers spend the next month figuring out a tortured logic to justify it. Scalia I'm less certain about, but he's usually a reliable vote when there's a clear-cut constitutional issue on the table. And Roberts has a lingering respect for the rule of law that even being a retrograde reganite shithead hasn't completely tamped down like it has in that useless hack Alito.
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Aug 18, 2015 16:22
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Discendo Vox posted:Roberts and Scalia aren't that insane- the doctrine at issue is completely uncontroversial among people not in need of antipsychotics. but are they included in the group of people not in need of antipsychotics
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Aug 18, 2015 16:27
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Twibbit posted:but are they included in the group of people not in need of antipsychotics Yes. Scalia and Roberts are conservative, not psychotic. I may find their views unpalatable, but presenting opposing positions as categorically crazy isn't productive.
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Aug 18, 2015 16:30
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Zeroisanumber posted:Scalia I'm less certain about, but he's usually a reliable vote when there's a clear-cut constitutional issue on the table. And Roberts has a lingering respect for the rule of law that even being a retrograde reganite shithead hasn't completely tamped down like it has in that useless hack Alito. Like that time business forced people to give up their right to association to form a class action suit simply by using their service, and he agreed with the justification of "it's what businesses want"?
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Aug 18, 2015 17:05
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Discendo Vox posted:Yes. Scalia and Roberts are conservative, not psychotic. I may find their views unpalatable, but presenting opposing positions as categorically crazy isn't productive. Yes, Scalia for example doesn't think the constitution actually considers women people. Perhaps the truth is in the middle.
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Aug 18, 2015 17:06
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Here's a question I've been looking for an answer to in regard to this whole debate, has SCOTUS ever ruled on on a case where both parents did not have legal immigration status? In Wong Ark Kim both his parents had legal status, such as it existed at the time. I'm just wary that if they never ruled on that specific circumstance it might be a loophole large enough for the conservatives on the court to drive through.
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Aug 18, 2015 17:08
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Goatman Sacks posted:Yes, Scalia for example doesn't think the constitution actually considers women people. Perhaps the truth is in the middle. tbh this may very well the true it's a decrepit old document which should be scrapped and worked over from the ground up
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Aug 18, 2015 17:09
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FlamingLiberal posted:Yeah the only way to change that would be via Constitutional amendment. Which is not happening. Trump has aroused a sleeping giant on the issue actually.
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Aug 18, 2015 17:24
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V. Illych L. posted:tbh this may very well the true it's a decrepit old document which should be scrapped and worked over from the ground up Since were dreaming, can we get rid of the 2nd amendment, move to a Westminster Parliamentary system and get MMP? 
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Aug 18, 2015 17:27
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Except that the bar for a Congressional Amendment is extremely high.
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Aug 18, 2015 17:28
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Goatman Sacks posted:Like that time business forced people to give up their right to association to form a class action suit simply by using their service, and he agreed with the justification of "it's what businesses want"? That's a legislative issue, specifically the Federal Arbitration Act (which badly needs to be rewritten and is like 70 years old). The decision was wrong on policy grounds but I'm not sure it's wrong given the text of the act.
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Aug 18, 2015 17:28
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Zeroisanumber posted:Scalia I'm less certain about, but he's usually a reliable vote when there's a clear-cut constitutional issue on the table. And Roberts has a lingering respect for the rule of law that even being a retrograde reganite shithead hasn't completely tamped down like it has in that useless hack Alito. The only dissent I would see is Alito, who is a total irredeemable shithead. I don't even see them granting cert except to reverse a Circuit Court decision upholding denying citizenship to someone born here. And I don't see that itself happening.
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Aug 18, 2015 17:34
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Mulva posted:Since were dreaming, can we get rid of the 2nd amendment, move to a Westminster Parliamentary system and get MMP? why on earth would you move to the westminster system it is almost as shite as what you have now
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Aug 18, 2015 17:54
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V. Illych L. posted:why on earth would you move to the westminster system it is almost as shite as what you have now Because the grass is always greener on the other side of the fence. Everyone hates their own political system and is convinced that if only they used someone else's all their problems would disappear - when in reality you just change one set of problems you hate for a different set you will hate just as much.
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Aug 18, 2015 17:59
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no, i mean why would you use that instead of something like the german system
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Aug 18, 2015 18:01
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V. Illych L. posted:no, i mean why would you use that instead of something like the german system I'm not married to it, if the German system is better then let's do that. I just want to get rid of a co-equal executive, a first past the post/winner take all voting system, and scheduled elections.
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Aug 18, 2015 18:04
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