I believe that you are the one that is confused on substantive rights within the constitution. Stanford Law
Different than Substantive due process – but, there are substantive rights within the constitution Shag…
Did you even read the link you cited?! Here is the first line:
"Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights.
That line alone confirms what I have been saying; that substantive rights stem from the "theory" of substantive due process. In fact, I can find nothing in that link that in any way counters what I have been saying; it only confirms it. If I am missing something, then quote the passage.
So, you are determining what the proper outcome of the opinion of the Supreme Court should be. No wonder you love quoting dissent… Remember Shag, it is the highest court in the land – our laws live and die by that court. Current opinion is what counts. If the court decides to be active, that is what the court is. All of Scalia’s dissents can’t change that. It will swing the other way eventually, it always does (the early 1800s supreme court was very active).
So...current opinion determines weather the rulings of the court are right or not?! That is patently absurd and self serving circular logic as well as a pretty blatant Argumentum ad populum.
Are you also trying to argue that I am not qualified to determine what the proper interpretation is and when the court is wrong? Can you say ad hominem attack? I have no doubt that if the court were to rule abortion illegal, you would be one of the first to claim it was a wrong decision.
But, without a declaration on when life begins (the founding fathers believed it was at ‘quickening’) the fetus isn’t protected. There is no statement of life in the constitution – I keep asking for you to show me where that text is, and you keep ignoring me.
That is irrelevant to the constitutional question in regards to abortion. The Roe v. Wade ruling didn't hinge on that right, it hinged on a made of broad "right to privacy" for the mother. That is the constitutional issue, not if the baby has a right to life.
Are you related to the man Shag? Or do you just blindly follow his decree?
Appeal to ridicule? I thought you were better then that...
I do suscribe to his judicial philosophy, and have had to study him a lot for school ( I played the part of Scalia in a "mock court" class dealing with the Newdow case; the whole semester was spent studying Scalia's jurisprudence).
And yes, he is against abortions – but he is a realist enough to know that without an amendment it can’t be made illegal. There is no clear constitutional solution to this problem – so without one, the court can’t declare them unconstitutional (or constitutional for that matter).
Correction:
He is against the SCOTUS ruling on abortion at all. In his view, the states constitutionally have every right to rule on it as they have a vested interest in protected that life and don't have the same prohibitions as the Federal government, per the U.S. Constitution. He has been pretty clear and consistent on that. Roe v. Wade is bad law that has aboslutely no constitutional basis, in his view.
The states cannot infringe on the rights stated in the constitution, and until there is a constitutional amendment regarding beginning of life, the states cannot arbitrarily decide to ban abortions.
Actually, the states can. As you said (and Scalia points out), there is nothing on abortion in the Federal constitution, either way. The states are free to do as they please. Only by creating a "substantive right to privacy" can it then be unconstitutional for the states to make a law banning abortion because it would then violate that made up "right".
You say the constitution doesn't say anything on abortion, so the SCOTUS cannot outlaw it, but it can make it legal by claiming to protect a "right to privacy"?! I am sure, if I spent the time, I could come up with a "previously unfknown substantive right" in the Constitution that defines life as beginning with conception; all I need is to be appointed to the SCOTUS.
And you might find Scalia ‘brilliant’ (blick) but there are plenty who find him contradictory at best – this was interesting regarding his viewpoints on allowing international law to shape our business law, but not our personal rights (Scalia has always been adept at picking and choosing when it supports his view point – sort of the supreme cherry picker I guess ). I have lots and lots of these Shag. I personally find the man egotistical and bordering on elitist, well, in fact he certainly wanders over to elitism with his whole textualism and original meaning arguments as unapproachable, residing on some sort of ‘correct’ pedestal. That is, until he needs to go with original intent to back his opinion.
Actually, that tends to be a red herring and mischaracterization. Scalia is very consistent. Only by spinning and distorting (usually by oversimplifying his views) can people claim he is not consistent.
Well, enough on your ‘god’ Scalia. And you do have to remember all the stuff you quote from him is just his opinion. There is lots and lots of opinion out there that contradicts his, but I am not going to make this a Supreme Court opinion/dissent pissing contest as much as you would like it to go there Shag.
You are now trying to justify simply disregarding him bacause you disagree with him. You are already making pretty obvious "appeal to authority" arguments to do so.
So, until the point when society dictates to women and declares conception as life, should we overrule the individual’s moral views and values? Or, Shag, maybe the individual rights should be steamrolled in favor of the (in this case) minority’s morals and values.
You are missing the point. The Roe v. Wade ruling does override individual moral views and values. You are only looking at it from one side, and since your values are not the ones overridden, you have no problem with it.
States voting on an chosing to ban or allow for abortion is individual morals and values determining where the law should fall.
And again, you keep citing rights that would be "steamrolled" by banning abortion, but you cannot cite them in the constitution. All you can do is cite activist judges and rules by activist judges.
You keep saying that ‘most’ people would say that life begins at conception, but, I haven’t seen anything that relates to that fact. I realize we can parry back and forth on this regarding polls and source, but I believe if it truly was a majority that believes life begins at conception, and abortions should be criminalized that this question could have been resolved long ago with an amendment. Heck, just the result here in Colorado this past election overwhelming points to public opinion not wanting an amendment dictating that life begins at conception.
I clearly stated that was my opinion. Also, I would want to see the wording of that bill and how it was voted on. This is a very devisive issue where there is no middle ground. So polls are not very telling as any question regarding this will not be neutral and will effectively be a leading question that introduces too much error in the poll to make it valid.
For now, it will remain dependent on the individual's morals and values, I think just as the founding fathers would have liked it.
Every law is based on morals and values, in fact they are imposing certain morals and values that most of society holds. That is what a law is.