Re: Neither wright nor wrong
by
spiker
07/22/2008, 10:19 PM
Do you understand that this example (and others elsewhere) is given as illustrative of the power the government has exercised over individuals and likely will in the future?
Funny enough these powers are given to the government by consent of the governed. Below is a quote from kc that explains this concept of consent of the governed. Abortion has been regulated, has been regulated, and likely will be regulated given statistics on the subject. You and degs are simply brainwashed into thinking that these facts (i.e. was/is/will be regulated) are not true. Currently abortion regulation has shown itself to be too liberal and by consent of the governed, individual states have regulated abortion a bit more (parental notification, informed consent, etc). There is no Federal right to an abortion on demand that will withstand scrutiny. If you want that then an amendment has to be added to the constitution. Won't happen though. What will happen is that there will be a consensus decision to legislate a less liberal access to abortion.
Stolen from kcmulville:
You don’t understand originalism, then. Originalism isn’t a rejection of precedent.
Originalism starts from the premise that the only basis for political authority is the consent of the governed. What gives the law authority is that the people agreed to it. And like a contract, if we agreed to it, it’s binding, otherwise not. Consent is the only basis for authority. There is no other basis, not even being correct. Being right doesn’t make it constitutional. Consent is the only thing.
The basis of judicial review is simply the application of logic. If A implies B, and the people consent to A, then they logically consented to B as well. The Constitution, especially the Bill of Rights, is what we first agreed to (A). Therefore, the consent that authorized (A) also authorized (B), and judicial review enforces that. At the same time, any subsequent law (B) that isn’t implied by the Constitution needs to be invalidated, and that’s also what judicial review is for.
Originalists have no problem with precedent. However, if one precedent extends to another, and then another, and we realize that at each extension that the principle we originally consented to has been distorted past what we would have agreed to, then the respect for precedent can’t trump the lack of authority. Conservatives believe that the right to privacy follows that line. The principle of privacy is certainly implied in the original Constitution, but by the time it gets to Roe v. Wade, that principle is stretched beyond what we would have consented to.