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TheDeadlyShoe posted:penumbras just means 'this is implied but not directly stated' Yeah, this is one of those things that's only difficult to grasp if you're thinking too much like an attorney and not enough like a normal person. Even for an "originalist," the central debate at the time of the passage of the Bill of Rights was over whether or not there should even be such a list, because of the implication that rights not listed might not count, which is why the 9th and 10th amendments exist.
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Mar 1, 2016 02:44
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VitalSigns posted:I don't see the problem. The constitution says we have unenumerated rights so we do, and anyway it wouldn't work without them (the constitution never says you can't ban vaccines or give the state governor the right of prima nocta), and looking at what other rights are logically implied from the ones enumerated seems like a good place to start. The government can ban vaccines and governors are subject to criminal law.
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Mar 1, 2016 02:55
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If a state government banned a vaccine the courts would probably expect them to show a compelling state interest in doing so that outweighs people's constitutional right to privacy and not say "well the bill of rights doesn't say vaccines anywhere so if your state assembly thinks they're Satan's saliva/Big Pharma mind control then tough titties"
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Mar 1, 2016 03:54
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My understanding is that this is the "there's no rule that says a dog can't play basketball" branch of constitutional law.
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Mar 1, 2016 04:04
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vyelkin posted:My understanding is that this is the "there's no rule that says a dog can't play basketball" branch of constitutional law. Did anyone actually watch that movie or did we all just see the million commercials they aired for it?
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Mar 1, 2016 04:11
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Wulfolme posted:Did anyone actually watch that movie or did we all just see the million commercials they aired for it? Air Bud is an American cinematic classic. I've never seen it. I really liked Homeward Bound, though.
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Mar 1, 2016 04:14
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VitalSigns posted:If a state government banned a vaccine the courts would probably expect them to show a compelling state interest in doing so that outweighs people's constitutional right to privacy and not say "well the bill of rights doesn't say vaccines anywhere so if your state assembly thinks they're Satan's saliva/Big Pharma mind control then tough titties" Especially since the courts already ruled that vaccines constitute a public health issue that override individual rights.
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Mar 1, 2016 04:25
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Except vaccines and other drugs are heavily regulated and something the government allows you to have access to, not some un enumerated fundamental right that would subject them to strict scrutiny
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Mar 1, 2016 04:29
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VitalSigns posted:I don't see the problem. The constitution says we have unenumerated rights so we do, and anyway it wouldn't work without them (the constitution never says you can't ban vaccines or give the state governor the right of prima nocta), and looking at what other rights are logically implied from the ones enumerated seems like a good place to start. Don't add "state government" after the fact, please.
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Mar 1, 2016 04:29
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Wulfolme posted:Did anyone actually watch that movie or did we all just see the million commercials they aired for it? Sure. My excuse is that I was 9.
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Mar 1, 2016 04:41
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EwokEntourage posted:Except vaccines and other drugs are heavily regulated and something the government allows you to have access to, not some un enumerated fundamental right that would subject them to strict scrutiny Abortions are heavily regulated as well, you can't do abortions in your garage, that doesn't mean that they're not a right. Manufacture and sale of birth control is heavily regulated, but the government is not allowed to ban it. We've already had a test case where governments were banning medical devices for arbitrary reasons without a state interest, it was Griswold and the court ruled that people have an expectation of privacy in their personal affairs
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Mar 1, 2016 04:45
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VitalSigns posted:Abortions are heavily regulated as well, you can't do abortions in your garage, that doesn't mean that they're not a right. Manufacture and sale of birth control is heavily regulated, but the government is not allowed to ban it. Your argument is now completely circular. Griswold is the exact case that we're saying uses an inappropriate rationale. You don't need to construe a privacy right from the Constitution to reach the outcome of Griswold, or of Row, or of Casey. That's the point.
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Mar 1, 2016 06:01
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You still haven't explained why it's inappropriate. You've complained that unenumerated rights aren't comprehensively defined and you just have to get the judges to agree with the same deontological norms but that problem exists however you reach the same outcome. Due process isn't defined anywhere in the constitution either, it comes down to whether you can convince the judges whether the process you got was due process or not.
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Mar 1, 2016 06:07
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quote:Not legally. It's a nightmare because there's no concrete basis or structure, or respective limit, for deontological norms that have no textual basis. if you're looking for a textual basis for everything in a document that specifically says there's rights with no textual basis i dont know what to tell you
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Mar 1, 2016 06:11
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Due process has a common law history going back to the Magna Carta and is specifically invoked in the Constitution.TheDeadlyShoe posted:if you're looking for a textual basis for everything in a document that specifically says there's rights with no textual basis i dont know what to tell you That's not the only interpretation of what the ninth amendment means. Historians have argued that it was an attempt to preserve concepts defined in state constitutions, or that it was intended to avoid creating a circularity problem in the application of enumerated rights. To simplify a very old debate, positivism-realism can be understood as a continuum with unreasonable ends. A narrow, selective or mechanical application of textualism or formalism, i.e. what Scalia did, represents the unreasonable positivist end of the spectrum. "Privacy" as an inconsistently defined right structure is problematic in its breadth of application and represents the unreasonable realist end of the spectrum. Creating that concept and right, especially if it were not necessary to reach a just outcome, is similarly inappropriate.
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Mar 1, 2016 06:41
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VitalSigns posted:Abortions are heavily regulated as well, you can't do abortions in your garage, that doesn't mean that they're not a right. Manufacture and sale of birth control is heavily regulated, but the government is not allowed to ban it. Griswold isn't about banning medical devices though? Its about banning contraceptives specifically in martial relationships. And (a) is the pill a medical device? a condom a medical device? how far does "medical device" stretch and (b) its about marital privacy, not bodily privacy / autonomy: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Eisenstadt v. Baird comes seven years later, and extends Griswold to unmarried couples. But it extends its on equal protection grounds, not substantive due process. Substantive due process is okay, its not the worst legal theory to be invented. The Ninth amendment is a truism and no real source of any legal authority or power. I blame it all on the Slaughterhouse cases. or something else in con law II I dunno EwokEntourage fucked around with this message at 07:35 on Mar 1, 2016 |
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Mar 1, 2016 07:28
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Discendo Vox posted:Due process has a common law history going back to the Magna Carta and is specifically invoked in the Constitution. The idea of it yes, whether any individual situation like abortion falls under it and merits protection from the reach of the legislature, no.
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Mar 1, 2016 07:48
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CannonFodder posted:So the 2 would be Alito and Thomas. What is Thomas's reasoning for banning abortion?
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Mar 1, 2016 08:35
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It looks like Mcconnel and Grasserly agreed to meet Obama at the WH. I did not think they would. Possible signal of a thaw.
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Mar 1, 2016 13:34
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euphronius posted:It looks like Mcconnel and Grasserly agreed to meet Obama at the WH. I did not think they would. Possible signal of a thaw. They realize Trump is their presidential nominee and all bets are off.
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Mar 1, 2016 13:58
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Mr. Nice! posted:They realize Trump is their presidential nominee and all bets are off. For Republicans betting on a Trump replacement is still a better bet than betting on an Obama replacement by a mile. Unless they think Trump will hold a Celebrity Justice competition to choose his nominee. Oh god, if Trump wins we're getting a White House reality TV show, aren't we?
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Mar 1, 2016 15:00
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Gyges posted:For Republicans betting on a Trump replacement is still a better bet than betting on an Obama replacement by a mile. Unless they think Trump will hold a Celebrity Justice competition to choose his nominee. I don't think the republican establishment sees Trump as a true conservative. They were really banking on Rubio winning and now that's out the window. They know the things he's yelling are just bluster and that if they actually sit down with Obama they have a chance in getting a guy like Sandoval instead of a complete wildcard.
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Mar 1, 2016 15:03
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Gyges posted:For Republicans betting on a Trump replacement is still a better bet than betting on an Obama replacement by a mile. Unless they think Trump will hold a Celebrity Justice competition to choose his nominee. They can call it the West Wing and it'll be hyuge.
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Mar 1, 2016 15:04
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"Best Wing", IMO.
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Mar 1, 2016 15:09
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Gyges posted:For Republicans betting on a Trump replacement is still a better bet than betting on an Obama replacement by a mile. I think it's more that Trump is going to be the nominee and Trump is guaranteed to lose horribly to Clinton. He might even take some senate seats with him.
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Mar 1, 2016 15:27
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coffeetable posted:I think it's more that Trump is going to be the nominee and Trump is guaranteed to lose horribly to Clinton. He might even take some senate seats with him. Trump would be amazing GOTV for the Democrats.
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Mar 1, 2016 15:29
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Subjunctive posted:Trump would be amazing GOTV for the Democrats. This is probably correct. Didn't the Palin pick have this effect or were GOTV numbers kind of locked in by that point?
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Mar 1, 2016 15:31
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FAUXTON posted:This is probably correct. Didn't the Palin pick have this effect or were GOTV numbers kind of locked in by that point? Palin certainly didn't hurt but there were a lot of other factors also driving Democratic turnout in 2008. I won't be surprised if McConnell is afraid of losing the Senate under Candidate Trump and has decided to let Obama appoint a moderate conservative justice rather than let Clinton appoint some 30 year old black Muslim lesbian clone of RBG.
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Mar 1, 2016 15:32
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FAUXTON posted:This is probably correct. Didn't the Palin pick have this effect or were GOTV numbers kind of locked in by that point? At the very least Palin seemed to have really turned off some moderate Republicans (e.g. suburban voters in upstate NY), who would have otherwise been pretty keeen on McCain. Not that he was so to win NY either way, but I imagine some swing Midwest States may have had some similar voters.
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Mar 1, 2016 15:38
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vyelkin posted:Palin certainly didn't hurt but there were a lot of other factors also driving Democratic turnout in 2008. Watch Obama suddenly realize he has all the leverage and become Trollbama before McConnell and Grassley's eyes. First choice: Ketanji Brown Jackson. Second choice: Loretta Lynch. Third choice: Eric Holder.
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Mar 1, 2016 15:40
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I think it's possible Senate Republicans budge on the open SCOTUS seat, but they've got to be resigned to losing both the Presidency and the Senate. If the writing is on the wall before the election I could see them giving in on a moderate candidate now instead of potentially a more liberal nominee later. McConnell may still think he can keep the SCOTUS thing under the radar during the campaign, and then try not go get hosed over downticket by running against Trump and Clinton like was speculated.
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Mar 1, 2016 17:01
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That's always been the most reasonable lab for everyone !!  They need to hire me I will arbitrate this impass
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Mar 1, 2016 17:02
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Catfish Noodlin posted:I think it's possible Senate Republicans budge on the open SCOTUS seat, but they've got to be resigned to losing both the Presidency and the Senate. If the writing is on the wall before the election I could see them giving in on a moderate candidate now instead of potentially a more liberal nominee later. If they lose the Senate, the new Senators get seated in the first week of January. They'd have to get beaten so badly that they can't filibuster until the 20th, but filibustering would look petty as all hell. On the other hand, they've been this way the whole time so being dicks for the sake of being dicks isn't going to hurt them if they get burned down to their firewall states. It wouldn't even matter because Hillary probably would relish in starting her term by nominating the same candidate they'd been filibustering and getting an early start on providing ammo for the Dems in the 2018 midterms. Just poo poo on them the whole time about how they're continuing their little general strike action into a second presidency or how they're a pack of racists for suddenly wanting to do their jobs with a white person in the white house.
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Mar 1, 2016 18:40
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vyelkin posted:I won't be surprised if McConnell is afraid of losing the Senate under Candidate Trump and has decided to let Obama appoint a moderate conservative justice rather than let Clinton appoint some 30 year old black Muslim lesbian clone of RBG. 
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Mar 1, 2016 22:14
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SubponticatePoster posted:But I want a black Muslim lesbian clone of RBG Lets face it, the only woman that's truly qualified to replace RGB is Beyonce. Obama, make it happen. 
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Mar 1, 2016 22:21
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FAUXTON posted:If they lose the Senate, the new Senators get seated in the first week of January. They'd have to get beaten so badly that they can't filibuster until the 20th, but filibustering would look petty as all hell. On the other hand, they've been this way the whole time so being dicks for the sake of being dicks isn't going to hurt them if they get burned down to their firewall states. It wouldn't even matter because Hillary probably would relish in starting her term by nominating the same candidate they'd been filibustering and getting an early start on providing ammo for the Dems in the 2018 midterms. Just poo poo on them the whole time about how they're continuing their little general strike action into a second presidency or how they're a pack of racists for suddenly wanting to do their jobs with a white person in the white house. The Democrats can just abolish the filibuster if they do that. They'd abolish it anyway the second the Republicans tried to filibuster Scalia's replacement. 2018 is going to be a very rough Senate election for the Democrats given the map, so don't hold out hope there.
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Mar 1, 2016 22:21
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evilweasel posted:The Democrats can just abolish the filibuster if they do that. They'd abolish it anyway the second the Republicans tried to filibuster Scalia's replacement. I don't believe either party will do squat to get rid of the filibuster. I recall the republicans wanted to get rid of the filibuster maybe 10 years ago or so, but didn't follow through because they knew it would be their turn to use it soon enough. The democrats will talk loudly, but will leave it in place too. Personally, I think the talk about getting rid of filibusters is just stuff to rally the troops.
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Mar 1, 2016 22:36
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patentmagus posted:I don't believe either party will do squat to get rid of the filibuster. I recall the republicans wanted to get rid of the filibuster maybe 10 years ago or so, but didn't follow through because they knew it would be their turn to use it soon enough. The democrats will talk loudly, but will leave it in place too. They already got rid of it for all appointments other than Supreme Court Justices.
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Mar 1, 2016 22:36
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patentmagus posted:I don't believe either party will do squat to get rid of the filibuster. I recall the republicans wanted to get rid of the filibuster maybe 10 years ago or so, but didn't follow through because they knew it would be their turn to use it soon enough. The democrats will talk loudly, but will leave it in place too. Like Computer Parts said, it's already been done on every other kind of judge and if you can get senators to abolish the filibuster for DC Circuit judges, you can easily get them to abolish it for a Supreme Court nominee already blocked for a year. I do not believe they're close to abolishing the legislative filibuster but if Trump really does a number on downticket races and the Democrats take control of the entire government, then it's possible.
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Mar 1, 2016 22:55
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evilweasel posted:Like Computer Parts said, it's already been done on every other kind of judge and if you can get senators to abolish the filibuster for DC Circuit judges, you can easily get them to abolish it for a Supreme Court nominee already blocked for a year. I do not believe they're close to abolishing the legislative filibuster but if Drumpf really does a number on downticket races and the Democrats take control of the entire government, then it's possible. If the Democrats take total control of the government, I hope that they would have learned enough from the Obama era to know to abolish the existing Filibuster and just go buckwild for the next two years. A liberal government without the SCOTUS to check it would be something to see. How much could Roberts feasibly water down liberal majorities by assigning them to himself? It's not something I understand in great detail.
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Mar 1, 2016 23:35
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