From Trekbbs: Are liberals Anti-Democracy

[Darth Wong]

Why not simply put skill-testing questions on the ballot? Any adult who can't (for example) figure out what two quarters and a nickel add up to should be shot, never mind being allowed to vote.

Gawd, are there really people that stupid?

I ran into one at a Wendy's a while ago. The bill was $5.55. My brother gave her a five dollar bill, two quarters, and a dime. She put it in the till, and when he asked for change she looked confused and shook her head no. The manager was watching, and with obvious frustration on his face, he elbowed her out of the way and gave my brother his nickel.

I wish I was making this up, but I'm not.

[Joe]

Why not simply put skill-testing questions on the ballot? Any adult who can't (for example) figure out what two quarters and a nickel add up to should be shot, never mind being allowed to vote.

Voting for Al Gore was apparently a skill-test in Florida.

[GySgt. Hartman]

Maybe we should try it the other way 'round: Force everybody to vote. Radical groups are often overrepresented because their followers all vote. If participation in a vote is 25% ( = 1/4 ), and participation of communists is 100%, then there are four times as much communists in the elected body than in the population. If you then make everybody watch an educational video before the vote (one which explains everything especially for the more ... stupid), where each party states its program, you may even get results that resemble what the people want.

You can't do that, you say? Infraction of civil rights, you say? Israel has a compulsory military service of two years. Germany has a compulsory service of nine months. I'd say it makes much more sense to make people vote than to force them into the military. Every citizen has a duty to its coutry, and one of these duties should be voting.

[Dahak]

Maybe we should try it the other way 'round: Force everybody to vote. Radical groups are often overrepresented because their followers all vote. If participation in a vote is 25% ( = 1/4 ), and participation of communists is 100%, then there are four times as much communists in the elected body than in the population. If you then make everybody watch an educational video before the vote (one which explains everything especially for the more ... stupid), where each party states its program, you may even get results that resemble what the people want.

You can't do that, you say? Infraction of civil rights, you say? Israel has a compulsory military service of two years. Germany has a compulsory service of nine months. I'd say it makes much more sense to make people vote than to force them into the military. Every citizen has a duty to its coutry, and one of these duties should be voting.

Nice idea, theoretically.
Greece, for instance, has compulsory voting. Does it make things any better ther? No.
And then there is the problem whom you're voting for, if all the alternatives suck ass...

[kojikun]

If the alternatives suck, you just have a check box that says "NONE OF THE ABOVE"

[Perinquus]

They want the Supreme Court to decide the law because that is the democratically decided-upon process.

Actually it's not. The legislative branch makes the laws, the court is only supposed to decide whether it is constitutional or not. The problem is that ever since the Warren court, justices have had a tendency to define new laws into existence by judicial fiat, and this subverts the way our government is supposed to work.

Here's a good article on the current debate:

Debating marriage


And some points from the article:

WASHINGTON -- Not again. We are the only Western country to have legalized abortion by judicial fiat rather than by democratic approval of the people or the legislature. Are we going to do it again with gay marriage?

We know what short-circuiting democracy does. Thirty years after Roe v. Wade, abortion still brings masses of demonstrators into the streets. Roe v. Wade, Ruth Bader Ginsburg once said, ``halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.''

A similar ``reform direction'' on homosexuality has been under way for years. There is no doubt that increasing tolerance of homosexuality, reappraisal of marriage, and common sympathy for fellow citizens would have led inexorably to the spread of civil unions (which I favor) -- and, as they became customary and were evaluated in the light of experience, perhaps ultimately to broad acceptance of gay marriage as well.

Instead, the courts have once again been commandeered to impose a revolution from on high.

[Darth Wong]

The legislative branch makes the laws, the court is only supposed to decide whether it is constitutional or not.

And isn't that precisely what's happening? Local legislatures are passing gay-marriage bans, and the court is being asked to rule on whether they are constitutional? I fail to see what part of this violates the principles upon which the country was founded.

[Durandal]

Actually it's not. The legislative branch makes the laws, the court is only supposed to decide whether it is constitutional or not. The problem is that ever since the Warren court, justices have had a tendency to define new laws into existence by judicial fiat, and this subverts the way our government is supposed to work.

The judicial branch is exercising its check. What do you expect them to do, exactly? In Roe v. Wade, the Supreme Court ruled that state bans on abortions were unconstitutional because they violated the implied right to privacy in the Constitution.

WASHINGTON -- Not again. We are the only Western country to have legalized abortion by judicial fiat rather than by democratic approval of the people or the legislature. Are we going to do it again with gay marriage?

This sounds like more conservative pissing and moaning about the judicial branch smacking down the laws passed by the conservative-dominated legislative and executive branches. Boo-fucking-hoo.

Do these people honestly think that people went to the courts with nothing to complain about? Every single law that the courts have overturned has been (get ready for this) on the books already. The courts' job is to determine the constitutionality of a law when a complaint meeting certain criteria is filed. Again, what do you expect them to do? Sit around and not exercise their check?

[Perinquus]

Actually it's not. The legislative branch makes the laws, the court is only supposed to decide whether it is constitutional or not. The problem is that ever since the Warren court, justices have had a tendency to define new laws into existence by judicial fiat, and this subverts the way our government is supposed to work.

The judicial branch is exercising its check. What do you expect them to do, exactly? In Roe v. Wade, the Supreme Court ruled that state bans on abortions were unconstitutional because they violated the implied right to privacy in the Constitution.

That's just it, there's no right to privacy in the constitution. You only get a right to privacy by interpreting it in there. A great many legal experts consider the decision to be bad law because of this. Justice Byron White, who wrote the dissent, was himself a supporter of a woman's right to abortion, but he considered the decision bad law. He argued that the abortion question "should be left with the people and to the political processes the people have devised to govern their affairs."

The question should not have been "settled" on the basis of interpreting a right into the constitution that is nowhere contained in it, it should have been settled by the legislature. And if it hadn't been for Roe vs. Wade, odds are it would have been. At least some states would very likely, in fact almost certainly have abortion laws on the books today.

WASHINGTON -- Not again. We are the only Western country to have legalized abortion by judicial fiat rather than by democratic approval of the people or the legislature. Are we going to do it again with gay marriage?

This sounds like more conservative pissing and moaning about the judicial branch smacking down the laws passed by the conservative-dominated legislative and executive branches. Boo-fucking-hoo.

Do these people honestly think that people went to the courts with nothing to complain about? Every single law that the courts have overturned has been (get ready for this) on the books already. The courts' job is to determine the constitutionality of a law when a complaint meeting certain criteria is filed. Again, what do you expect them to do? Sit around and not exercise their check?

I expect them to interpret the constitution plainly, not read "implied" rights into it.

Without a clear constitutional mandate, issues like abortion and gay marriage are too important and too divisive to be removed from politics by judicial fiat. Divisive political issues need to be settled politically, not judicially. When you do settle them judicially, the problem gets worse, not better (see Roe vs. Wade, or Dred Scott vs. Sanford). And I can't think of anything in the constitution that would make laws against gay marriage unconstitutional. So the issue needs to be left to the political process. With the direction in which society is moving, it is virtually certain that civil unions will be approved in a number of places, and probably eventually gay marriage as well.

[Perinquus]

The legislative branch makes the laws, the court is only supposed to decide whether it is constitutional or not.

And isn't that precisely what's happening? Local legislatures are passing gay-marriage bans, and the court is being asked to rule on whether they are constitutional? I fail to see what part of this violates the principles upon which the country was founded.

The problem is when they base their rulings on rather loose interpretation of the constitution. This is what is meant by judicial activism, and when they use this means to settle divisive political issues judicially, it only seems to prolong the problem.

[Darth Wong]

The problem is when they base their rulings on rather loose interpretation of the constitution. This is what is meant by judicial activism, and when they use this means to settle divisive political issues judicially, it only seems to prolong the problem.

And how is it a "loose" interpretation? It is abundantly clear from any examination of the Founding Fathers that their intention was to err on the side of liberty, not oppression. Ergo, it is hardly an unreasonable interpretation of the Constitution to have a habit of striking down bans on activities which do no harm and which have little or no justification beyond popularity among certain special-interest groups.

[Illuminatus Primus]

I've seen no evidence that resentment for Roe v. Wade has precisely shit to do with the rights of SCOTUS (and implied rights and loose constructionism have been around since Jefferson and the first Bank of the U.S.), and not to do with the fact that there simply are a large number of socially regressed, bigotted, theocratic fundies in this country.

How many redundant Consitutional amendments were passed after the Civil War because the South refused to grant the freedmen their civil rights? That was clearly political, and was still opposed. I don't see how the modern situation is any different. I have a hard time believing that the fundies got huffy and drasticallly more stubborn decades longer than they would have otherwise just because SCOTUS ruled according to its rights to do so, a law unconstitutional.

[Perinquus]

I've seen no evidence that resentment for Roe v. Wade has precisely shit to do with the rights of SCOTUS (and implied rights and loose constructionism have been around since Jefferson and the first Bank of the U.S.), and not to do with the fact that there simply are a large number of socially regressed, bigotted, theocratic fundies in this country.

What so all strict constrcutionists are socially regressed, bigotted, theocratic fundies?

Yeah, there are a lot of people like that, and there a lot who aren't. Had it not been for Roe vs. Wade, there's a good chance that places like Georgia, Tennessee, Alabama, etc. would still have laws banning abortion. And places like New York, California, Massachussets, Washington state, Illinois, etc. probably would have laws that allow it. You can't write off the democratic process because you're afraid the decision won't go your way.

How many redundant Consitutional amendments were passed after the Civil War because the South refused to grant the freedmen their civil rights? That was clearly political, and was still opposed. I don't see how the modern situation is any different. I have a hard time believing that the fundies got huffy and drasticallly more stubborn decades longer than they would have otherwise just because SCOTUS ruled according to its rights to do so, a law unconstitutional.

It was right that it should have been done that way. The process of making an amendment to the constitution is a democratic process. All those amendments got passed democratically, they were not imposed judicially. They still passed politically, even though it was opposed in the south.

[Perinquus]

The problem is when they base their rulings on rather loose interpretation of the constitution. This is what is meant by judicial activism, and when they use this means to settle divisive political issues judicially, it only seems to prolong the problem.

And how is it a "loose" interpretation? It is abundantly clear from any examination of the Founding Fathers that their intention was to err on the side of liberty, not oppression. Ergo, it is hardly an unreasonable interpretation of the Constitution to have a habit of striking down bans on activities which do no harm and which have little or no justification beyond popularity among certain special-interest groups.

There can be a fairly fine line to walk, but on the whole, I think judicial activism does more harm than good. Laws are designed to enforce limits on both the governors and the goverened. When too much "wiggle room" is interpreted into the law, it more readily opens the door to abuses. Keeping to a more strict interpretation allows less room for judges to impose their personal preferences into their decisions. The problem is judicial creativity may indeed do good in some cases, if it is the result of principled activism. The problem is that once you allow the law to be interpreted loosely for such reasons, how do you prevent it from later being interpreted in similar loose fashion for partisan reasons? Strict interpretation puts a better check on such abuses.

To Oliver Wendell Holmes, a strict constructionists, and one of the greatest justices in the history of the court, the cognitive meaning of laws as instructions took precedence over the psychological motivations or philosophical values of the writers of laws—or of contracts, for that matter, for "parties may be bound by a contract to things which neither of them intended." Legal interpretation of what someone said did not mean, for Holmes, trying to "get into his mind" When a legal document "does not disclose one meaning conclusively according to the rules of the language" Holmes said, the question was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." He said: "We do not inquire what the legislature meant; we ask only what the statute means." He also said: "I do not expect or think it desirable that judges should undertake to renovate the law. That is not their province."

[Guardsman Bass]

The legislative branch makes the laws, the court is only supposed to decide whether it is constitutional or not.

And isn't that precisely what's happening? Local legislatures are passing gay-marriage bans, and the court is being asked to rule on whether they are constitutional? I fail to see what part of this violates the principles upon which the country was founded.

The problem is when they base their rulings on rather loose interpretation of the constitution. This is what is meant by judicial activism, and when they use this means to settle divisive political issues judicially, it only seems to prolong the problem.

Perhaps I should point out that under the constitution(and claimed in Marbury vs Madison) the Supreme Court has the right to interprete the constitution as they see it when deciding on the constitutionality of a law. You consider it "loose", but that does not matter, because the interpretation is how they view it, and that can change(hence the defense of segregation in the U.S. in the late nineteenth century by the Court, and the unconstitutionality of it in the late 1950's Court).

[Perinquus]

Perhaps I should point out that under the constitution(and claimed in Marbury vs Madison) the Supreme Court has the right to interprete the constitution as they see it when deciding on the constitutionality of a law. You consider it "loose", but that does not matter, because the interpretation is how they view it, and that can change(hence the defense of segregation in the U.S. in the late nineteenth century by the Court, and the unconstitutionality of it in the late 1950's Court).

That's just another reason I favor judicial restraint. When justices are sticking closer to the plain meaning of the text of the statute and the constitution there is less room for laws to change so widely through different interpretations.

[Illuminatus Primus]

What so all strict constrcutionists are socially regressed, bigotted, theocratic fundies?

I never said that--I simply implied that loose constructionism is a bedrock of much of our national history and policies, and is hardly the simple fallacy you make it out to be.

Do not strawman my position, please.

Yeah, there are a lot of people like that, and there a lot who aren't. Had it not been for Roe vs. Wade, there's a good chance that places like Georgia, Tennessee, Alabama, etc. would still have laws banning abortion. And places like New York, California, Massachussets, Washington state, Illinois, etc. probably would have laws that allow it. You can't write off the democratic process because you're afraid the decision won't go your way.

Sure I can.

Why do you think that the Antifederalists demanded the Bill of Rights?

They didn't want the rights of the people at the will of the mob. The tyranny should not be permitted to oppress the minority.

Democracy is not an a priori good. It should be limited, and the powers of the people should be regulated and forced to kneel to law and rights. The majority of citizens in the fundamentalist Islamist states of Southwest Asia believe in removing basic rights of press and freedom of expression. Do you support those on an Appeal to Popularity?

If the Rule of Law as we know it does not permit laws to be made respecting the certain control of individual behavior, than those laws should not exist, and the tyranny of the majority should be checked.

It was right that it should have been done that way. The process of making an amendment to the constitution is a democratic process. All those amendments got passed democratically, they were not imposed judicially. They still passed politically, even though it was opposed in the south.

You don't get the point. You made an assertion--that the exercise of judicial power in Roe v. Wade lead to widespread and significantly greater popular resentment than would be present otherwise. I provided a historical example of things being done your way, politically, and having no impact whatsoever in the oppression of the minority or the lack of resentment and defiance of law--even originating democratically.

[Patrick Degan]

That's just it, there's no right to privacy in the constitution. You only get a right to privacy by interpreting it in there.

Amendment IX:

The enumeration in this Constitution of certain Rights shall not be construed to disparage or deny other Rights held by the People.

[Joe]

That's just it, there's no right to privacy in the constitution. You only get a right to privacy by interpreting it in there.

Amendment IX:

The enumeration in this Constitution of certain Rights shall not be construed to disparage or deny other Rights held by the People.

That particular constitutional can of worms isn't often opened.

[Perinquus]

What so all strict constrcutionists are socially regressed, bigotted, theocratic fundies?

I never said that--I simply implied that loose constructionism is a bedrock of much of our national history and policies, and is hardly the simple fallacy you make it out to be.

Do not strawman my position, please.

Well then let's not appeal to the actions and motives of a group of extremists in order to portray a certain position as invalid, shall we?

Yeah, there are a lot of people like that, and there a lot who aren't. Had it not been for Roe vs. Wade, there's a good chance that places like Georgia, Tennessee, Alabama, etc. would still have laws banning abortion. And places like New York, California, Massachussets, Washington state, Illinois, etc. probably would have laws that allow it. You can't write off the democratic process because you're afraid the decision won't go your way.

Sure I can.

Fine, then don't pretend to have any respect for democratic instututions. Admit you'd be happy to live in a dictatorship then, as long as you got to be the one pulling the strings.

Why do you think that the Antifederalists demanded the Bill of Rights?

They didn't want the rights of the people at the will of the mob. The tyranny should not be permitted to oppress the minority.

Democracy is not an a priori good. It should be limited, and the powers of the people should be regulated and forced to kneel to law and rights. The majority of citizens in the fundamentalist Islamist states of Southwest Asia believe in removing basic rights of press and freedom of expression. Do you support those on an Appeal to Popularity?

And in this country democracy is limited. That's why we have a republic, not a true democracy. Nevertheless, despite the limitations of the democratic form of government, I am in full agreement with Winston Churchill, it's merely the least offensive type of government we've come up with so far.

If the Rule of Law as we know it does not permit laws to be made respecting the certain control of individual behavior, than those laws should not exist, and the tyranny of the majority should be checked.

And the Bill of Rights was ratified to do that. If any other rights need to be added to the constitution, let them be put in by the same procedure we used to get the Bill of Rights in there, not interpreted in by the judiciary.

It was right that it should have been done that way. The process of making an amendment to the constitution is a democratic process. All those amendments got passed democratically, they were not imposed judicially. They still passed politically, even though it was opposed in the south.

You don't get the point. You made an assertion--that the exercise of judicial power in Roe v. Wade lead to widespread and significantly greater popular resentment than would be present otherwise. I provided a historical example of things being done your way, politically, and having no impact whatsoever in the oppression of the minority or the lack of resentment and defiance of law--even originating democratically.

On the contrary, the fact that amendments were democratically put into the constitution to deal with those issues, instead of judicial review being used to decide them, indicates that it was not necessary for the justices to engage in activism in order to solve that problem. It merely necessitated the extra step of a constitional amendment when the regular legislative procedures didn't suffice.

[Illuminatus Primus]

Well then let's not appeal to the actions and motives of a group of extremists in order to portray a certain position as invalid, shall we?

How were they extremists? Is not the existance of stuff like the Interstate Highway System and the Federal Reserve not extentions of loose constructionism? What about Lincoln's Union-saving-stretches during the Civil War?

Fine, then don't pretend to have any respect for democratic instututions. Admit you'd be happy to live in a dictatorship then, as long as you got to be the one pulling the strings.

Strawmen are offensive. Do not place statements into my mouth which I did not speak.

This is also a false dilemma fallacy; not every non-democracy is a despotate. I do not believe each and every citizen deserves the quantity of political power granted to them in the U.S. Sorry?

And in this country democracy is limited. That's why we have a republic, not a true democracy. Nevertheless, despite the limitations of the democratic form of government, I am in full agreement with Winston Churchill, it's merely the least offensive type of government we've come up with so far.

Then do not be annoyed when checks on the pure representative democracy block the passage of certain laws under their rights. Your justification to the contrary is solely that they were passed under the people's will. If that justification was necessary, we wouldn't have enshrined laws above Federal review.

And the Bill of Rights was ratified to do that. If any other rights need to be added to the constitution, let them be put in by the same procedure we used to get the Bill of Rights in there, not interpreted in by the judiciary.

Ah, I see. So the Judiciary should withhold things such as the Miranda Rights and others? What of the fact that gay marriage bans are openly sexist? What of the Ninth Amendment? You argue that a right does exist until explicitly said. The implications of the Founding Fathers and presence of the Ninth Amendment says otherwise, as does political and legal precedent in this country.

On the contrary, the fact that amendments were democratically put into the constitution to deal with those issues, instead of judicial review being used to decide them, indicates that it was not necessary for the justices to engage in activism in order to solve that problem. It merely necessitated the extra step of a constitional amendment when the regular legislative procedures didn't suffice.

You still do not get the point.

JUSTIFY THAT DEALING WITH ABORTION BY FEDERAL LAW WOULD HAVE MADE CITIZENS AT ALL LESS STUBBORN AND DEFIANT AS YOU ASSERTED ORIGINALLY.

[Perinquus]

Well then let's not appeal to the actions and motives of a group of extremists in order to portray a certain position as invalid, shall we?

How were they extremists? Is not the existance of stuff like the Interstate Highway System and the Federal Reserve not extentions of loose constructionism? What about Lincoln's Union-saving-stretches during the Civil War?

You were referring to socially regressed, bigoted, theocratic fundies, and apparently using the existence of people like them to make a case that we need judicial activism.

Fine, then don't pretend to have any respect for democratic instututions. Admit you'd be happy to live in a dictatorship then, as long as you got to be the one pulling the strings.

Strawmen are offensive. Do not place statements into my mouth which I did not speak.

How is that a strawman? I said:

"You can't write off the democratic process because you're afraid the decision won't go your way."

To which you replied - and I quote - "sure I can".

Now what is that, if not an admission that you would be willing to circumvent or set aside the democratic process when it doesn't give you what you want? Such an attitude is antithetical to democracy. And it's also, incidentally, exactly the kind of thing the founding fathers set up our government to try and prevent.

This is also a false dilemma fallacy; not every non-democracy is a despotate. I do not believe each and every citizen deserves the quantity of political power granted to them in the U.S. Sorry?

Then as I said, don't pretend to have any respect for democratic institutions.

And in this country democracy is limited. That's why we have a republic, not a true democracy. Nevertheless, despite the limitations of the democratic form of government, I am in full agreement with Winston Churchill, it's merely the least offensive type of government we've come up with so far.

Then do not be annoyed when checks on the pure representative democracy block the passage of certain laws under their rights. Your justification to the contrary is solely that they were passed under the people's will. If that justification was necessary, we wouldn't have enshrined laws above Federal review.

And the whole point is that the only reason these checks blocked those laws is that the judges got creative in interpreting the constitution, which I think it is a bad idea to do, for while they can do good that way, they can also do bad.

And the Bill of Rights was ratified to do that. If any other rights need to be added to the constitution, let them be put in by the same procedure we used to get the Bill of Rights in there, not interpreted in by the judiciary.

Ah, I see. So the Judiciary should withhold things such as the Miranda Rights and others? What of the fact that gay marriage bans are openly sexist? What of the Ninth Amendment? You argue that a right does exist until explicitly said. The implications of the Founding Fathers and presence of the Ninth Amendment says otherwise, as does political and legal precedent in this country.

The most meaningful definition of judicial activism is "a departure from the text, structure, and logic of the Constitution." The difficulty in implementing the 9th amendment is how to protect unenumerated rights without determining a final list of such rights and without lending credence to illegitimate claims of right.

The best definition I have yet heard on how to do this is:

As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be "immune" from interference by government.32 Such a presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both "necessary and proper" to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its "police power"—that is, the state's power to protect the rights of its citizens.

Implementing the Ninth Amendment

Now how does abortion fit into this? Gee, that's a tough question. The problem is some people see it as a right of the woman to choose what to do with her own body. Other people see it as the right of a human being (unborn, true, but still a human being) to life. Which side is right? Well that's a very thorny issue. Unfortunately, before all the arguments could be weighed, and a settlement reached by political means, the process was halted in its tracks by a judicial mandate, and we've been dealing with this unresoved mess ever since.

On the contrary, the fact that amendments were democratically put into the constitution to deal with those issues, instead of judicial review being used to decide them, indicates that it was not necessary for the justices to engage in activism in order to solve that problem. It merely necessitated the extra step of a constitional amendment when the regular legislative procedures didn't suffice.

You still do not get the point.

JUSTIFY THAT DEALING WITH ABORTION BY FEDERAL LAW WOULD HAVE MADE CITIZENS AT ALL LESS STUBBORN AND DEFIANT AS YOU ASSERTED ORIGINALLY.

If that was your point, your example was ill-chosen to make it.

But fine. Imagine for a moment that the Supreme Court had decided not to hear Roe vs. Wade, reasoning that there was no constitutional issue at stake. In other words, the court found in unnecessary even to hear the case because it seemed obvious to the justices that there was nothing in the constitution to forbid laws against abortion. Or you can imagine that they heard the case, and still decided that there was nothing in the constitution to forbid such laws. Either way, the problem would have been referred back to the legislative process, for it's a certainty that the advocates of abortion would not have given up. They would simply have concentrated on working through the legislature, on lobbying and so forth, and if this had happened, can there really be much doubt that in states like California, Massachussets, Washington state, etc. that they would have succeeded in getting laws passed that permitted abortion? Quite probably in other states, chiefly in the south no doubt, abortion would still be illegal. There might be other states, not so clearly divided along liberal and conservative lines, where abortion was permitted only under certain circumstances, such as rape, incest, or when the health of the mother is at stake.

In any case, if this state of affairs had prevailed, what we would not have today is the continued insistence on Roe v. Wade as a judicial litmus test, which has more sharply divided nomination and approval of judges along partisan lines, and this has politicized the court on all matters, not just abortion, turning it into a mini-legislature, with deliterious effects on domocracy. Consider that in the last presidential election, Al Gore broke an old taboo. When asked in one of the debates whether he’d have a "litmus test" for Supreme Court nominees, Gore didn't just respond with the usual line that he was only concerned with nominating justices who would "apply the law of the land". Gore said he sure as hell would apply a litmus test, though he continued to shy away from the term. Perhaps in doing this Gore removed some of the hypocrisy from presidential politics; but he also condemned the Democrats to openly be the party of politicized law. NARAL president Kate Michelman demanded from democratic nominees in the current presidential race a promise to filibuster the confirmation of any court nominee who does not positively "affirm" a pro-choice stance. Kerry and Edwards quickly agreed.

Roe vs. Wade also gave rise to both pro and anti abortion activist movements that are far more strident than they were before, which is why NARAL now has the political clout to demand, and get, from democratic candidates a promise to apply a judicial litmus test. Also, because Roe vs. Wade pre-empted a political solution to this issue, the United States is the only advanced country whose abortion laws rest on no democratic legitimacy whatsoever. In other words, there are no laws protecting abortion rights now. There is only case law from Roe vs. Wade, and if the makeup of the court should change so that the issue is brought before the court again, and Roe Vs. Wade is overturned, there will be nothing. That doesn't look too good if you are on the pro-abortion side of the argument.

And all this might have been avoided if the issue had gone to a political settlement, instead of being decided by judicial fiat. And given the climate of the country, and the opinion polls, we'd probably, indeed almost certainly have legalized abortion now anyway.

[SirNitram]

'Judicial Activism'? You mean the new catchphrase from the Bush administration to refer to any judges that strike down laws that remove rights with no objective basis? Perhaps we'll finally get a straight answer on how these individuals are doing anything other than their jobs..

[Perinquus]

'Judicial Activism'? You mean the new catchphrase from the Bush administration to refer to any judges that strike down laws that remove rights with no objective basis? Perhaps we'll finally get a straight answer on how these individuals are doing anything other than their jobs..

No, I mean: "a departure from the text, structure, and logic of the Constitution." which goes way back to the early days of our republic, and which has became a more common practice since the days of the Warren Court.

Or weren't you paying attention?

[Joe]

'Judicial Activism'? You mean the new catchphrase from the Bush administration to refer to any judges that strike down laws that remove rights with no objective basis? Perhaps we'll finally get a straight answer on how these individuals are doing anything other than their jobs..

"Judicial activism" has been used to describe judges for years now. In fact, critics of the Rehnquist Court often accuse it of judicial activism for conservatism.