19 / July
19 / July
John Roberts, Supreme Court Nominee

President Bush announced his nomination of John Roberts for the Supreme Court of the United States this evening. Roberts worked for William French Smith in the Reagan administration, clerked for Justice William Rehnquist, and argued 39 cases before the Supreme Court. Roberts is 50, and has an impressive resume. There are better choices for conservatives than Roberts, but there are also worse ones. One needn't possess Sherlock Holmes' skills at deduction to speculate why Edith Clement's name got leaked earlier today ("Thank God it's not that female David Souter.").

Republicans have tried the blank slate route before. That's the Supreme Court pick whose opinions are unknown--perhaps even to himself. What did it get the GOP? David Souter, for one. President Bush has twice been elected president, and his party controls 55 Senate seats. If he really is a social conservative--let's face it, this is all about Roe v. Wade--why should he operate from a position of weakness and nominate a consensus candidate? While Roberts is neither the consensus candidate nor 2005's David Souter, his views on Roe v. Wade, at least, are unknown. Is a crapshoot the best conservatives can do? On the other hand, the Democrats refused to confirm him when George H.W. Bush nominated him to the bench, and took two years to confirm him when George W. Bush nominated him to the DC Court of Appeals. Perhaps the Democrats know something that we don't. Time will tell.

posted at 08:29 PM
Comments

The BBC calls him a "staunch conservative," but that, of course, doesn't necessarily mean anything.

How about some mea culpas from James, Wilds, Epstein, et al. for their hilariously incorrect predictions on this issue.

Posted by: Ben Litchman on July 19, 2005 09:28 PM

i may still be proven right. i predicted a nominee a la Souter. his record is either nonexistant or muddy on the most fundamental issue of life and death. as Mr. Flynn has said, "Time will tell."

Posted by: polemical muhammad ali on July 19, 2005 09:31 PM

Roberts said this in 1991:

"We continue to believe that Roe was wrongly decided and should be overruled..."

Posted by: Ben Litchman on July 19, 2005 09:34 PM

from the Washington Post, this is his most recent position taken on the abortion issue,

"Pressed during his 2003 confirmation hearing for the appeals court seat for his own views on the matter, Roberts said: 'Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent.'"

Posted by: polemical muhammad ali on July 19, 2005 09:34 PM

I don't understand why anything beyond a faithful command of the Constitution is required for any nominee to any court. If citizens want to decry the president's powers, let it be over those not mentioned in the Constitution, like Executive Orders.

Posted by: Jeremiah on July 19, 2005 09:39 PM

Jeremiah,

i guess i'm too dense to understand at what you're aiming. are you saying that those who elected President Bush should not demand that he appoints justices who will protect life, which is a constitutional guarantee?

Posted by: polemical muhammad ali on July 19, 2005 09:48 PM

Ben,

Why is a mea culpa in order? I never once speculated on what kind of Justice President Bush would nominate to the Supreme Court.

Is Mr Roberts a conservative? Honestly, I know virtually nothing about him nor his judicial philosophy. Although I have been listening to the local talk radio circuit and some conservative callers have called in saying that Mr Roberts has written opinions that indicate he would uphold Roe v Wade and other controversial decisions. So we'll see.

Posted by: Eric Wilds on July 19, 2005 09:51 PM

I just did a little research. Here is the controversial statement made by Mr Roberts in 2003, "Roe v. Wade is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Posted by: Eric Wilds on July 19, 2005 10:00 PM

Wilds -- just went back and checked. 'Twas my mistake, I apologize. I should have said, "Ali, James, Epstein..."

Posted by: Ben Litchman on July 19, 2005 10:08 PM

Ben Lichtman,

why should we issue a mea culpa? because you brought up a dated 14 year old comment? what about the 2003 statement? based on that statement this guy favors upholding Roe v. Wade, fully and faithfully so.

Posted by: polemical muhammad ali on July 19, 2005 10:14 PM

"There's nothing in my personal views that would prevent me from fully and faithfully applying [Roe v. Wade]."

If this is the simple truth (as opposed to a cleverly worded dodge - say, while his "personal views" may not be contrary to abortion law, his "legal views" are opposed to it), Roberts cannot be a conservative, i.e., a constructionist.

It doesn't take a Harvard law degree to know that a right to an abortion (or any relevant genus) is not guaranteed by the Constitution. If anything, the 14th Amendment prohibits (or at least restricts) the practice of abortion.

Posted by: Ralph on July 19, 2005 10:14 PM

Ralph,

i guess there is a distinction between upholding and applying. i really hope i'm wrong, and that i'll have to admit it. as it stands now only time will tell.

Posted by: polemical muhammad ali on July 19, 2005 10:22 PM

hey pma,
No! The confirmation process shouldn't be based on politics, that's all. It cheapens the offices and the Consitution. If people's (mostly liberals' and feminists') litmus test for the Court is abortion rights, they should've worked harder when they tried to "rock the vote" last Nov. 2.

Posted by: Jeremiah on July 19, 2005 10:23 PM

Jeremiah,

i agree completely.

Posted by: polemical muhammad ali on July 19, 2005 10:27 PM

I guess what I'm saying re abortion is that it's a matter best left up to the states, namely their legislatures.

Posted by: Jeremiah on July 19, 2005 10:28 PM

Ali,

why should we issue a mea culpa?

http://www.flynnfiles.com/cgi-bin/mt/mt-comments.cgi?entry_id=1091


what about the 2003 statement? based on that statement this guy favors upholding Roe v. Wade, fully and faithfully so.

All I can say is that I hope he was using the verbal sleight of hand that Ralph described when he made that later statement.

Posted by: Ben Litchman on July 19, 2005 10:30 PM

Ben Lichtman,

i really want you to be right! 8-)

Posted by: polemical muhammad ali on July 19, 2005 10:32 PM

hahah :)

Posted by: Ben Litchman on July 19, 2005 10:33 PM

food for thought, from a post on americablog.blogspot.com, a liberal blog.

"Roberts is Roman Catholic, son of a Bethlehem Steel executive, raised near Burns Harbor, Indiana, a Gary suburb. Had to work his way through Harvard by working in his father's steel mill.
Grant in Texas | 07.19.05 - 10:43 pm | # "

maybe his faith will reinforce his reasoning? who knows. another post on the blog stated he is a practicing Catholic, and the church is pretty staunchly pro-life.

Posted by: polemical muhammad ali on July 19, 2005 10:55 PM

No,

He is a Souter. What else would a Republican liberal like Bush nominate? Bush isn't pro-life anyway, never has been. He has always supported the "but" position, as in against abortion except in the case of rape, incest, or life of mother. He allowed federal funding on destroyed stem cell lines. He is down with sodomite marriage, and likes war under false pretenses.

Look, we need to look at the difference between those two quotes mentioned above. The first was when he was Deputy Solicitor General and he was employing the royal "we" since he had to express the official position of the Bush I White House. That can't be construed as his view at all on that basis. This "royal we" doesn't definitively mean it isn't his view but the second quote negates it anyway.

Why? B/c the second quote establishes that he is a legal positivist, that is what is meant by "settled law of the land." Legal positivists are generally not good ("not good" assuming one shares my Thomistic natural law views about the nature of justice and strict constructionist and Aristotelian views on jurisprudence) even though they do come in "conservative" forms, such as Scalia.

Finally, if the press is calling him a "staunch conservative" then he isn't. Since when has the press accurately applied such a term. If he was someone a conservative would like then they would be calling him a "extreme right-winger" or some such.

Sea King . . . set us straight, I pass the mic.

P.S. I could give the normal proviso's of "of course, I hope I am wrong and he turns out alright," etc., but my optimist switch was broken long ago. Millions of dead babies makes me a bit more cynical, or realistic imo. Anyway, I am a betting man and my money is on another Souter.

Posted by: Brian on July 19, 2005 11:29 PM

On this very site, when you all were discussing potential nominees about three months ago, I posted a link to an article on Roberts. Do I win a free autographed copy of Intellectual Morons for my prescience?

Posted by: Reader on July 20, 2005 12:22 AM

Welcome back Reader...

Posted by: Canada on July 20, 2005 12:33 AM

Bush isn't pro-life anyway, never has been. He has always supported the "but" position, as in against abortion except in the case of rape, incest, or life of mother.

Brian, are you saying that saving the life of the mother is not a justification for abortion?

He is down with sodomite marriage

His proposing an Amendment to the Constitution that would bar this is a rather odd way of showing it.

Posted by: Ben Litchman on July 20, 2005 04:21 AM

This is what I get from the 2003 quote: He will "fully and faithfully" apply the precedent of row v wade because it is law and that is his job as a judge. It seems to me he was avoiding the more controversial topic of should it be overturned? It might be a shot in the dark but I bet he wants to overturn Wade.

Posted by: peggy on July 20, 2005 10:32 AM

folks, is there any other factor that plays into your decision when it comes to abortion??

is there a case for population control in the USA?? remove God for one second, can this country support every unwanted child?? could our infrastructure, social systems, economy support the extra people??

im interested to see if anyone can knock down the right to abortion without invoking God once....

do you favor outlawing masturbation too or sex that doesnt lead to the creation of a embryo?? when does life start?? who determines that??

serious questions here...


Posted by: Man Coulter on July 20, 2005 12:28 PM

Man Coulter: The Constitution nowhere mentions the right to an abortion. There, in one sentence I've "knock[ed] down the right to abortion without invoking God once."

Posted by: Dan Flynn on July 20, 2005 12:34 PM

Man Counter: You're not asking serious questions. Your plethora of disrespectful strawmen indicate that you haven't ever bothered following the right's arguments against judicial supremacy, against abortion, or against Roe v Wade.

Why should we respond to someone who has gone this far in life without ever listening to the opposition's reasoning?

Serious question here!

Posted by: short on July 20, 2005 12:36 PM

Look, Roberts' 2003 statement about upholding Roe was in response to a question about how he would act as a circuit court judge, and his answer was appropriate -- he would apply Supreme Court precedent. It tells us nothing about how he would act as a Supreme Court justice reviewing that precedent. Also, let's not discount the fact that his wife is a former executive vice president of the pro-life group "Feminists for Life." How many pro-choice guys do you know who are married to pro-life women?

He's no guarantee to vote against Roe, but I think he's much more likely to go that way than the other.

Posted by: Answerman on July 20, 2005 12:36 PM

I'll defend Man Coulter here.

It is true that there is no right to privacy in the Constitution. But there is also no right to marriage, no right to have children, no right to engage in foreign trade, and no right to breathe air.

Why is it that such rights are excluded from the Constitution? The reason is that the Constitution spells out what THE GOVERNMENT can do--not what people can do. Any moderately intelligent graduate of a high school-level American History class should know that. The Constitution adumbrates the powers of the government--not the things individual people can or cannot do.

In sum, it is unavailing that there is no right to have an abortion in the Constitution, because the role of the Constitution is to spell out what the government can do--not what people can do.

Posted by: Reader on July 20, 2005 02:18 PM

Yes, -- what the federal government can do. It doesn't spell out what the state governments can or can't do, as the language of the 10th amendment confirms. So the Constitution does not contain a generic right to privacy as against state governments that encompasses a right to an abortion. It expressly leaves such matters, which are not enumerated federal powers, "to the people, OR TO THE STATES."

Posted by: Wade on July 20, 2005 02:30 PM

That's right, Reader. The constitution names only the powers of the government. It doesn't list the infinite residual powers of the people. So, e.g., the constitution doesn't say whether or not someone has a right to murder his infant or have sex with dogs. The federal government cannot curtail those activities because, as you say, the constitution doesn't give the federal government that power. I agree. But it seems like we're in a pickle. According to your reasoning, as far as I can tell, we can't make infaniticide and bes-tiality illegal.

Problem solved: The power to make such things illegal is reserved to the people of the states.

Same with abortion.

Posted by: short on July 20, 2005 02:33 PM

The Constitution nowhere mentions the right to an abortion.

oh i see we're using semantic arguments here.. i never realized that the words

where in the constitution does it give us the right to kill people in an electric chair?? or thru lethal injection??

im for the DP by the way...

Why should we respond to someone who has gone this far in life without ever listening to the opposition's reasoning?

because i have an extremely hard time finding any argument against abortion that doesnt mention God, or constitutional semantics... im new to the game, i havent studied every single argument.. maybe the ones you refer to have been drowned out by the christian right versions... enlighten me...

Posted by: Man Coulter on July 20, 2005 03:26 PM

Short:

You basically get it. I'm surprised, because you seemed to be having so much trouble interpreting Article III, Section I. No idea why this concept is so much easier for you.

The only thing I'd add to your last post is that the Tenth Amendment provides that: "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." And the Ninth Amendment provides that: "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparate others retained by the people."

Now, what are we to make of all this? What are the rights retained by the people in the Ninth Amendment? And in the Tenth Amendment, which powers are left to the states and which to the people?

Objectively, I don't think there are any clear answers. Certainly, the states are supposed to retain powers but so are the people. And the people are supposed to retain rights besides the certain rights delineated in the Bill of Rights. What are those rights?

The argument for abortion is based on the principle that the right to privacy is a right people enjoy that is not otherwise delineated in the Bill of Rights. Obviously, the Supreme Court created this right, but the Ninth Amendment calls for the Court to spell out rights not mentioned in the Constitution.

To me, the whole abortion debate--at least legally--centers around what the "rights" suggested at in the Ninth Amendment refer to. Under the liberal interpretation, these rights have some meat on them--such as the right to privacy. Under the conservative interpretation, these rights are minimal and basic--such as the right to breathe--and the states have the power to regulate everything else without infringing on individual rights.

Regrettably, the Founders and Framers of the Constitution did not publish a handbook to help us interpret how the Ninth and Tenth Amendments should be read together. Without such a manual, this area of Constitutional Law will continue to be among the most ambiguous and contentious.

Posted by: Reader on July 20, 2005 03:39 PM

I don't know where you get the idea that the Ninth Amendment "calls" for the Court to do anything. It says what it says; it doesn't "call" for the Supreme Court to start infallibly delineating specific rights.

Posted by: Wade on July 20, 2005 03:48 PM

We are left having to deconstruct Roberts' upbringing and professional life because his extensive professional career has provided astonishingly little to go on. And his links with the Washington legal establishment do not inspire confidence.

Posted by: Michael Meckler on July 20, 2005 04:12 PM

Wade:

Someone must interpret what the "rights" referred to in the Ninth Amendment are--a duty that falls on the Supreme Court. That is why I said that the Supreme Court is called on to explicate and interpret what those rights are.

Posted by: Reader on July 20, 2005 04:13 PM

"Reader": Note that the 9th says that the "people" retain those rights. It doesn't say that those rights are all individual rights, or that the federal government is to guarantee that the states don't interfere in those individual rights. You are assuming both of these points without argument. Then, you are further assuming that the SC gets to say what those unenumerated rights are. The constitution doesn't say that. Wow. Lots of assumptions.

These rights retained by the people include their right to act communally in various ways. So, for example, the people retain the right to regulate the sale of fire crackers. Same with regulating murder, contraception, spanking, litering, rape, etc. (to infinity!). Any power not given to the fed government, nor denied to the states, is retained by the people and their states. The rights to outlaw firecrackers and abortion are among these. Plain as day.

(BTW: Your puzzle regarding which powers are retained by the people and which by their state governments is really easy: the people of the states determine this according to their state constitutions. If you think this phrase of the 10th is puzzling, it's because you are assuming that the US constitution is supposed to decide how the states gov'ts are structured. It's not.)

Posted by: short on July 20, 2005 04:44 PM

Well he studied under Rhenquist and he is my favorite Justice, and he is called a brilliant mind by his peers, so maybe he is what we are looking for in a Supreme Court Justice. He appears to be a strict constructionist, and this may not always work in favor of the far right, but it works for me.

I don't want another Scalia, he is a conservative, but sometimes rules on personal ideology rather than the strict interpretation of the U.S. Constitution. Just look at the medical Marijuana case where he increased Federal interstate commerce powers only because he was against Marijuana use, under any conditions.

Posted by: The Uncooperative Blogger on July 20, 2005 05:33 PM

Short:

I'm not assuming anything when I say that it is the Supreme Court's job to interpret the Constitution. After all, that IS the role of the Court.

The second paragraph of your post is evidently your interpretation of how the Ninth and Tenth Amendments should be read together. You evidently think that there is only one unenumerated right provided for in the Ninth Amendment, and that is the "right to act communally in various ways." This is "plain as day."

To me, it's not. I bet it's not plain as day to other people, either. If I were to show the 9th Amendment to 100 New Zealanders unfamiliar with American Constitutional Law, I doubt that any of them would extrapolate the "right to act communally in various ways" from the text.

Don't try to over-simplify the issue. It's really not clear. And that is why the courts have struggled with it.

Posted by: Reader on July 20, 2005 07:02 PM

"These rights retained by the people include their right to act communally in various ways." -Me

"You evidently think that there is only one unenumerated right provided for in the Ninth Amendment, and that is the "right to act communally in various ways."" -Reader

Maybe Reader should learn to read. Lookup "is" and then lookup "include."

I think the 9th amendment includes many rights, an infinity in fact. The powers of the federal govenment are only the enumerated ones; the powers/rights of the people of the several states is everything else.

Posted by: short on July 20, 2005 08:13 PM

Short: "I think the 9th amendment includes many rights, an infinity in fact."

Any legal objection you had to Roe v. Wade just went out the window. Whoops.

Posted by: Reader on July 20, 2005 10:12 PM

Reader: Odd. Only if you haven't been paying attention. I consider one of the potential infinity of rights alluded to in the 9th, the right belonging to the people to make abortion legal or illegal at sub-federal levels.

The 9th isn't mysterious. Like the 10th, it adds no new content to the constitution, but is a rule for application. It is about how we should construe the constitution. ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") The 9th tells us not to take the bill of rights as a complete list, and the 10th tells us to take the enumerated powers of the fed gov't as a complete list. By doing so, they imply what you just don't believe...that the people (as a whole, as individual persons, as citizens of states) don't need to list their rights/powers in the federal constitution. They keep it all. The only rights they don't retain only those explicitly given away in the constitution. Where in the constitution do the people of the several states give up their right to outlaw (or legalize) abortion or spousal beating (to pick just two examples out of an infinity)?

Posted by: short on July 20, 2005 11:00 PM

Why, indeed, operate from a postion of weakness? Doesn't one only have the power if one uses it? Like when it's your turn. It's really only your turn if you take it. If you don't, someone else will.
What good does it do to have the power, and not use it?
But like others have commented previously about Judge Roberts, only time will tell...

Posted by: michael spurek on July 21, 2005 01:07 AM

You're not going to get any apologies from me on this now, Ben. As others have pointed out here, just because the BBC calls Roberts a "staunch conservative" does not mean that he is. Perhaps he is, but the jury is still out. Given the abyssmal failure of Republican Presidents more conservative than GWB to get strict constructionists on the Court, I have no reason to believe GWB will break precedent.

I am surprised the pick wasn't Gonzales - perhaps Bush is saving Gonzales for Rehnquist's seat. Time will tell.

Posted by: James on July 21, 2005 01:11 PM

Nah, you blew it. Here's what the 9th Amendment states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

If the right to privacy is one of the un-enumerated rights, then it is a right that may not be "denied" or "disparaged" or abrogated by the government. In other words, people have a constitutional right to privacy that the government may not deny or infringe upon.

Your legal argument against abortion has gone up in smoke.

Posted by: Reader on July 21, 2005 06:18 PM

You're not going to get any apologies from me on this now, Ben. As others have pointed out here, just because the BBC calls Roberts a "staunch conservative" does not mean that he is. Perhaps he is, but the jury is still out. Given the abyssmal failure of Republican Presidents more conservative than GWB to get strict constructionists on the Court, I have no reason to believe GWB will break precedent.

Hey James,

I was one of the "others" who pointed that out.

And I don't seek an apology. I just think it's a good idea for people to admit when they're wrong.

Posted by: Ben Litchman on July 21, 2005 07:21 PM

Reader: You're arguing that my understanding of the 9th demands that I recognize a right to abortion. Why do you think your argument applies to a "right to abortion" and not also to a "right to outlaw abortion"? Can you give a reason?

(BTW Appealing to Roe's precedent here is circular.)

Posted by: short on July 21, 2005 10:45 PM

The 9th Amendment says that there are certain unenumerated rights which the state cannot take away or restrict. By recognizing that such rights exist--an "infinite" number of them, according to you--you are saying that there are an infinite number of rights that the government cannot take away.

Flush. There goes your legal argument against abortion.

Posted by: Reader on July 22, 2005 12:43 PM

Reader: Why don't you address the question? Why doesn't the ninth not include the right to outlaw abortion?

Again, you are constistently making two mistakes: (1) By refering to "the government" you are eliding the difference between the federal government, which is what is being structured by the federal constitution, and the other governments that the people organize at state and local levels. (2) You are assuming all rights alluded to in the 9th are individual rights to be protected by the federal government. You can argue for these positions, but right now you seem to be illicitly relying on them without argument. That amounts to another petitio principii.

To be clear, I think that the people have both of the following rights against the US government: they have the right to have abortions, they have the right to outlaw abortions at subfederal levels. These two rights, qua rights against the federal government, are consistent. They will continue to seem inconsistent to you only if you continue to make the above two assumptions.

Now, please, again, give a *reason* why my view of the 9th amendment would demand that the federal government prevent the people of the several states from outlawing abortion. You have merely repeated a completely unclear rationale in response to my position--a ratinale that I'm sure makes sense to you but has the peculiar feature of completely ignoring what my actual position is.

Posted by: short on July 22, 2005 02:07 PM

Okay. I think I see where you are confused now. You don't understand that states cannot take away rights provided for in the federal Constitution. In other words, unenumerated rights provided for in Article 9, contrary to what you think, cannot be abrogated by the states. States can add additional protections to their own constitutions, but they cannot abrogate rights granted to citizens under the federal Constitution.

These are your words: "To be clear, I think that the people have both of the following rights against the US government: they have the right to have abortions, they have the right to outlaw abortions at subfederal levels. These two rights, qua rights against the federal government, are consistent."

What you mean by that gibberish is less than clear (you weren't drunk when writing that, were you?). But you appear to mean that the 9th Amendment provides for the right to an abortion. However, you also think that that is a right that the states can take away. If that is what you mean, then you need to research the Supremacy Clause before writing your next post. Simply put, under the Supremacy Clause the states cannot abrogate a right provided for in the Constitution--i.e., CA cannot vote to do away with the Second Amendment in CA.

You again: "Now, please...give a *reason* why my view of the 9th amendment would demand that the federal government prevent the people of the several states from outlawing abortion."

Very simple. (1) you seem to believe that the right to an abortion is one of the "infinite" number of rights provided for in the 9th Amendment; (2) if the right to have an abortion is provided for in the 9th Amendment, then the states may not take away that right under the Supremacy Clause. Wham, bam, you're finished! Citizens have a constitutional right to have abortions!

Just to help you out in the future: if you want to argue that there is no legal right to an abortion, you have to interpret the 9th Amendment NARROWLY. Your expansive interpretation of the 9th Amendment undermines any legal argument you might have against abortion. It is no coincidence that conservative con law scholar Robert Bork believes the 9th Amendment should be read as if it does not exist (i.e., ignore it--it does not provide for ANY significant unenumerated rights), while liberal con law scholars like Barnett and Dworkin take an expansive view of the 9th Amendment--believing that it encompasses a multitude of unenumerated rights. Amazingly, your interpretation of the 9th Amendment provides for more rights than Barnett's interpretation or Dworkin's interpretation! Are you really a liberal in disguise? Or are you just really ignorant?

You are not very good at this whole internet debating thing. Why not take up something else? I hear that there is a big need for civilian contractors in Iraq...

Posted by: Reader on July 22, 2005 03:06 PM

"You don't understand that states cannot take away rights provided for in the federal Constitution." -Reader

Reader: You're begging the question again. My claim is that these are rights against the US government, not against, say, the states, or your parents, or God. (Parallel: I have a right, vis a vis my employer, for health insurance based on our contract; I don't have this right vis a vis my neighbor. My neighbor can't take this right away, they also don't have to fulfill it themselves.) I have a right for the federal government not to keep me from having an abortion, or smoking a cigarette, or killing myself, merely because the federal government wasn't granted these powers. I'll make my position as clear as possible: The fact that a certain power is not granted to the federal government in the constitution IS/CONSISTS IN/IMPLIES a right belonging to every citizen against the federal government to the effect that the federal government cannot exercize those powers over me.

My reasoning for this is as follows: the federal constitution is a constitution for the federal government; the 9th amendment is explicitly a guide about how to read the federal constitution-- it seems to have no content apart from that (this is similar to Bork's position). Thus, the rights it alludes to are rights vis a vis the federal government-- and not rights against the state governments to be provided by the federal government (as is the right to a republican form of government at the state level).

If you disagree, if you think the 9th amendment has content limiting the state governments, you should argue for this rather than just calling me confused. (BTW appealing to incorporation through the 14th is begging the question here.)

Now, for the 3d time: perhaps you should offer a reason to say that the right via a vis the federal government to have an abortion is included in the 9th, and not the right vis a vis the federal government to outlaw abortion at the state level. Why are you assuming all unenumerated rights are individualistic?

Posted by: short on July 22, 2005 03:38 PM

Massive insecurity complex, Reader?

Posted by: Another Reader on July 22, 2005 03:56 PM

(1) You are truly in your own universe. I must admit that I don't know what the hell you are talking about. If I gave a copy of your last post to a shrink, you'd be locked up within ten minutes. If you gave a copy of your last post to a con law scholar, you might be arrested for intentional infliction of emotional distress.

Very simply now, so you can understand: the 9th Amendment states that certain unenumerated rights retained by the people may not be denied or disparaged (i.e, may not be taken away). You think that there are an infinite number of rights that may not be denied or disparaged (i.e., may not be taken away). One of those rights is the right to have an abortion. If that is a right that the federal government cannot take away under the Constitution, then it is a Constitutional right provided for in the Constitution. And if it is a Constitutional right provided for in the Constitution, then state governments cannot take that right away--under the Supremacy Clause.

Do you understand this much? What the hell are you saying in your last post? Are you serious, or are you just spouting nonsense to get a rise out of me?

(2) "Now, for the 3d time: perhaps you should offer a reason to say that the right via a vis the federal government to have an abortion is included in the 9th, and not the right vis a vis the federal government to outlaw abortion at the state level. Why are you assuming all unenumerated rights are individualistic?"

Look, Short, I really want to respond to your trouble/question/concern, but I can't when I find it impossible to follow what you are saying. Try to process this information: the 9th Amendment states that the people retain certain unenumerated rights that the federal government cannot take away. These are constitutional rights provided for in the 9th Amendment. If something is a Constitutional right, then no state government can take the right away.

I don't get your "individualistic" question. The 9th Amendment refers to "the people." People are individuals. What the heck do you think the 9th Amendment means by "the people"? Further, the 9th Amendment is part of the Bill of Rights--which is concerned with what you call "individualistic rights," such as the right not to have to pay excessive bail, the right to bear arms, the right to freedom of speech, etc., etc. Do you think the 9th Amendment is an anomaly? For the love of God, what are you saying?

Posted by: Reader on July 22, 2005 04:19 PM

Another Reader: are you referring to Iraq?

Posted by: Reader on July 22, 2005 04:22 PM

Reader: Rather than accusing me of being stupid, drunk, crazy, or in need of institutionalization, perhaps you should think: "When someone who is otherwise intelligent seems overwhelmingly stupid to me, I'm probably not listening." You simply are refusing to consider any view other than what you have been inculturated into in contemporary con-law.

(1) You are assuming that all rights are individual rights. I disagree, and so did the Founders. (Example: The right of the people to "alter or abolish" any government destructive of the common good, is not an individual right, but it was clearly recognized by the Founders.) Not all of the rights listed in the Bill of Rights are individual rights (see the 10th).

(2) You are also assuming that all of the Bill of Rights' protections necessarily limit state governments. But it is a federal constitution, and the states often had their own bills of rights and constitutions, so this is an unwarrented assumption. Moreover, some rights listed in the Bill of Rights are clearly limitations ONLY on the federal government. For example, the first amendment rights are clearly rights against Congress, which is mentioned by name. The people of the states retained the right to establish religions, and some of them continued to do so for years. So this assumption is also unwarrented.

Once you suspend these two assumptions, you will find my view quite consistent, even if you still don't find it convincing.

My point is very simple: Ironically, the ninth amendment is being constued to deny and desparage several unenumerate rights which were exercised by the people of the states for the first two centuries of the union: the rights of the people to govern themselves on matters of abortion, sodomy, contraception, etc. You have so far simply refused to see these as rights.

You have also refused to think that the 9th amendment--which is clearly only a guide telling us how to construe the constitution--was meant to emphasize the limitations of federal power; ironically, your reading of it amounts to a massive granting of power the federal government.

Posted by: short on July 22, 2005 06:27 PM

That's an interesting point about the First Amendment, short. I think, in that case, it ought to be re-amended with the listed freedoms guaranteed to every citizen of the United States, minus the possibility of their being infringed by state governments.

Posted by: Ben Litchman on July 23, 2005 08:23 PM

Short: Sorry I didn't get to that post earlier. I must have missed it. But here we go.

"Rather than accusing me of being stupid, drunk, crazy, or in need of institutionalization, perhaps you should think: 'When someone who is otherwise intelligent seems overwhelmingly stupid to me, I'm probably not listening.'"

I usually do employ that principle. But I only use it when I think I'm chatting with someone intelligent. :)

"(1) You are assuming that all rights are individual rights."

Sorry for joining Clarence Thomas, Antonin Scalia, Anthony Kennedy, David Souter, John G. Roberts, Oliver Wendell Holmes, William Rehnquist, Learned Hand, Robert Bork, Laurence Tribe, Gerald Gunther, Kathleen Sullivan, Erwin Chemerinsky and others in making this obviously erroneous assumption. Of course, our interpretation of the 9th Amendment is incorrect and baseless, while yours is correct.

"I disagree, and so did the Founders. (Example: The right of the people to "alter or abolish" any government destructive of the common good, is not an individual right, but it was clearly recognized by the Founders.)"

Okay. That is a collective right. So what? That proves that the 9th Amendment is not speaking to an individual right?

"Not all of the rights listed in the Bill of Rights are individual rights (see the 10th)."

True. The Bill of Rights consists of 10 Amendments. Rights 1-8 clearly speak to individual rights. The 10th Amendment clearly speaks to federalism. That advances your position precisely how?

"(2) You are also assuming that all of the Bill of Rights' protections necessarily limit state governments. But it is a federal constitution, and the states often had their own bills of rights and constitutions, so this is an unwarrented assumption."

No. This is not an unwarrented assumption. This is how things actually operate today. If a right is provided for in the Constitution, then the Constitution protects that right within all states. An individual state cannot opt to do away with a right that is provided for in the Constitution. Hate to burst your bubble, but that is how it is.

You are right that the states have their own constitutions. But state constitutions only ADD additional rights--state constitutions cannot take away rights provided for by in the federal constitution.

"Moreover, some rights listed in the Bill of Rights are clearly limitations ONLY on the federal government. For example, the first amendment rights are clearly rights against Congress, which is mentioned by name. The people of the states retained the right to establish religions, and some of them continued to do so for years. So this assumption is also unwarrented."

Yes, you are right. Initially, the law was that the Bill of Rights only applied to the federal government. That is why states could establish official state religions. However, in the early twentieth century the Bill of Rights was "incorporated" so that its protections apply to all of the states through the Due Process Clause of the 14th Amendment.

"Once you suspend these two assumptions, you will find my view quite consistent, even if you still don't find it convincing."

OK. I guess your view is consistent. But it requires us to ignore everything that happened legally during the last 200+ years. What good does that do us?

"My point is very simple: Ironically, the ninth amendment is being constued to deny and desparage several unenumerate rights which were exercised by the people of the states for the first two centuries of the union: the rights of the people to govern themselves on matters of abortion, sodomy, contraception, etc. You have so far simply refused to see these as rights."

I think your beef is with incorporation, not with how the 9th Amendment, per se, is interpreted. The states have less ability to govern themselves on areas such as abortion, sodomy, contraception, etc., because the states cannot deny citizens the rights provided for in the Bill of Rights now that those rights also apply to the states through the Due Process Clause of the 14th Amendment.

"You have also refused to think that the 9th amendment--which is clearly only a guide telling us how to construe the
constitution--was meant to emphasize the limitations of federal power; ironically, your reading of it amounts to a massive granting of power the federal government."

I don't think that the 9th Amendment invokes federalism at all. I think that the 9th Amendment states that there are certain unenumerated rights which the leviathan cannot take away. I don't know what those rights are--the rights are not spelled out. I can accept that the Court has worked for hundreds of years on this issue, and there have been lots of strident arguments because it is not clear what the unenumerated rights are.

I understand your "states rights" inclinations. But I repeat that I think your beef is with Incorporation. It is Incorporation that caused the Bill of Rights to be enforced against state governments. Prior to Incorporation, state governments could promulgate laws which denied citizens within the state the protections provided for in the Bill of Rights.

Posted by: Reader on July 24, 2005 01:31 AM

OK, Reader, I do have a beef with incorporation, as I indicated several days ago when I pointed out that if you appeal to incorporation then you would be begging the question. Perhaps you should have read more carefully.

But we are arguing not about the history of conlaw, of which I am not entirely ignorant, but about whether the constitution includes an individual right to abortion which the states may not abrogate. I know HOW this has happened historically. My point from the beginning was that it happened badly.

You are simply assuming that the way it has happened historically is legit. Now I've argued that what has happened historically was wrong, bad, not legit. You don't when the argument by saying: "This is just what has happened historically. Historically, you're wrong." That's just to change the topic.

Posted by: short on July 24, 2005 01:59 AM

Short:

I don't want to debate stale issues.

Are you finally ready to concede that your interpretation of the 9th Amendment--as things actually stand in real life--completely undercuts any legal arguments you could make against abortion?

And, if not, why not?

Posted by: Reader on July 24, 2005 11:33 AM

Reader: Stop the macho chest beating, which really isn't believable from you anyway. The fact that the SC has "in real life" said I'm wrong doesn't make it so.

And you have done nothing to refute my reading of the 9th amendment. You haven't even come close. (Your consideration of the two key assumptions in this debate was woefully void of reasons.) All you can appeal to in the end is that I'm disagreeing with the SC. I knew that already.

Posted by: short on July 24, 2005 12:26 PM

Short:

I don't want to refute your interpretation of the 9th Amendment. Heck, I hope John Roberts, Jr. and future Supreme Court nominees share your view. That way the Court will likely unearth a host of new constitutional rights and protections for citizens, and you will be left crying in your beer and whining incessantly on this message board! Poetic justice, I think that's called?


Posted by: Reader on July 25, 2005 12:18 AM

Yes, Reader, if the court rediscovered the right of the people of the states to do whatever the constitution hasn't explicitly denied to them, I would be "left crying in [my] beer and whining incessantly." Right. Keep up the good fight!

Posted by: short on July 25, 2005 11:08 AM

You're ignoring incorporation, Short. Hate to be the bearer of bad news, but we are in the 21st century now, not the 19th century.

Posted by: Reader on July 25, 2005 12:35 PM

I'm not ignoring incorpoaration. I'm disagreeing with it. In your legal worldview, it's impossible for a reasonable person to disagree with the SC on a constitutional question like incoporation. Pardon me, but that amounts to a completely unAmerican, self-imposed mental-slavery regarding the document that is supposed to protect us against tyranny. Think for yourself, genius.

Posted by: short on July 25, 2005 01:03 PM

Short:

Go ahead and disagree with incorporation. Go ahead and argue that the United States should not have a Bill of Rights, that Lincoln should have been elected instead of Douglas, that Grant is not really buried in Grant's tomb, that the sun revolves around the Earth, that Marlowe really was Shakespeare or anything else you wish. I don't care.

The point which we've been discussing for the last thirty posts is that the legal case for abortion is completely undermined by your reading of the 9th Amendment. This is true in our universie--i.e., the world in which we actually live.

Your attempts to construct an alternative universe in which you win the argument are risible. Really. I'm sitting here and laughing as you try to undo the last 200 years of constitutional law so that your position is defensible.

Ha-ha!

Posted by: Reader on July 25, 2005 03:26 PM

Whoops! Before you whine and complain, I meant the "legal case against abortion."

Posted by: Reader on July 25, 2005 03:28 PM

It seems this entire debate was a hilarious misunderstanding! I feel like I'm in a sitcom or something! Ha ha ha!

I thought we were discussing whether the current reading the constitution (esp re Roe) by the SC is correct. It turns out that this wasn't the issue at all.

You thought we were discussing whether--if we assume that the current SC's view of the constitution is correct--then should Roe be overturned?

What kind of stupid question is that. Topic of discussion: If we grant that the moon is made of cheese, is Short right that the moon is not made of cheese?

Posted by: short on July 25, 2005 03:52 PM

Er, it seems to me that you are trying to turn it into a misunderstanding in order to CYA.

Posted by: Reader on July 25, 2005 08:00 PM

Reader: you haven't presented reasons with your insults on this thread for quite a while, so it's gotten to be rather boring for me. I am more than happy to "CYA," as long as you don't take that literally.

Posted by: short on July 25, 2005 09:49 PM

Short:

As far as I'm concerned, this thread is dead.

I don't want to ignore the last 200+ years of constitutional law and start from scratch. You can have that argument with someone else.

My point all along was that your interpretation of the 9th Amendment completely undermines the conservative case against abortion. This might not have been true as the law was interpreted 200+ years ago, but it is true as the law is interpreted today.

I think we can leave it at that.


Posted by: Reader on July 27, 2005 04:42 PM
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