By that logic, slavery could be considered natural law based on the fact that it was legal in some places at the time.
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By that logic, slavery could be considered natural law based on the fact that it was legal in some places at the time.
Are you convinced that abortion is something that the federal government has any authority over? Could it be that this is an issue that the states should be deciding?
Obviously that is a flawed argument, as slavery was also in existence at the time, and slavery is quite obviously contrary to natural law, and also to the text of the Constitution.
The word abortion appears nowhere in the US Constitution. What was the legal and social environment that caused the court to take such an unprecedented action of which I believe they didn't even have the authority to decide?
Attitudes toward abortion were in fact shifting and Americans were in a serious public debate, amending state laws to fit the changing morality. Sure, New York's laws were more liberal than Texas's but again that is the beauty of how our federalist system of government is supposed to work. And a Texan who wanted an abortion could - with the help of charity if she needed it - go across state lines to obtain one.
Enter the Supreme Court. In his Roe opinion, Justice Blackman purported to find in the "penumbras" and "emanations" of the Constitution the right to an abortion. His opinion struck down 50 state laws, but, even more destructively, he also stopped democracy cold. Without Roe, we likely would have had a decade or so of political battles in 50 state legislatures which is where the battle belonged. My guess is that we would have ended up with a rough consensus close to where every poll shows the American public stands on abortion: Legal on the first trimester, with restrictions later in pregnancy and provisions for parental and spousal notification.
One of Roe's many paradoxes is that it instantly gave the US one of the most permissive abortion laws in the Western world. Many European countries require counseling and/or waiting periods and most - including Germany, France, and Sweden - forbid it after the first trimester or early into the second. Britain and Japan allow it only when the physical or mental health of the woman is at stake, and in Japan the husbands permission is required. By contrast, US law falls into the same no questions asked category as China and the former countries of the Soviet Union.
Another paradox has developed with strides in neonatal technology: Our society now spends millions to save premature babies born at 25 weeks but permits abortion in the final week of gestation so long as the mother can find a doctor to say she will suffer psychological trauma if she gives birth. Such moral disparities will only become more acute as modern medicine lowers the age at which a fetus becomes viable outside the womb.
I think that the injustice is not the only issue. What the court has done here and in many other social issues that they have wrongly issued rulings on, is to have banished these issues form a political forum, that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight. Instead the Court merely prolongs and intensifies the anguish, since it often does not agree with the political will of the people.
So what happens if the new members on the Supreme Court, come to their senses and overturn a number of big cases, like Roe, to start setting things right? I can't see that overturning Roe would vanish a women's right to an abortion. But what it would do is rightly return the issue to 50 state legislatures, and I suspect that nearly all of them would quickly make it legal with some restrictions. In short the country would arrive at the position favored by most Americans.
Attitudes toward abortion were in fact shifting and Americans were in a serious public debate, amending state laws to fit the changing morality. Sure, New York's laws were more liberal than Texas's but again that is the beauty of how our federalist system of government is supposed to work. And a Texan who wanted an abortion could - with the help of charity if she needed it - go across state lines to obtain one.
Enter the Supreme Court. In his Roe opinion, Justice Blackman purported to find in the "penumbras" and "emanations" of the Constitution the right to an abortion. His opinion struck down 50 state laws, but, even more destructively, he also stopped democracy cold. Without Roe, we likely would have had a decade or so of political battles in 50 state legislatures which is where the battle belonged. My guess is that we would have ended up with a rough consensus close to where every poll shows the American public stands on abortion: Legal on the first trimester, with restrictions later in pregnancy and provisions for parental and spousal notification.
One of Roe's many paradoxes is that it instantly gave the US one of the most permissive abortion laws in the Western world. Many European countries require counseling and/or waiting periods and most - including Germany, France, and Sweden - forbid it after the first trimester or early into the second. Britain and Japan allow it only when the physical or mental health of the woman is at stake, and in Japan the husbands permission is required. By contrast, US law falls into the same no questions asked category as China and the former countries of the Soviet Union.
Another paradox has developed with strides in neonatal technology: Our society now spends millions to save premature babies born at 25 weeks but permits abortion in the final week of gestation so long as the mother can find a doctor to say she will suffer psychological trauma if she gives birth. Such moral disparities will only become more acute as modern medicine lowers the age at which a fetus becomes viable outside the womb.
I think that the injustice is not the only issue. What the court has done here and in many other social issues that they have wrongly issued rulings on, is to have banished these issues form a political forum, that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight. Instead the Court merely prolongs and intensifies the anguish, since it often does not agree with the political will of the people.
So what happens if the new members on the Supreme Court, come to their senses and overturn a number of big cases, like Roe, to start setting things right? I can't see that overturning Roe would vanish a women's right to an abortion. But what it would do is rightly return the issue to 50 state legislatures, and I suspect that nearly all of them would quickly make it legal with some restrictions. In short the country would arrive at the position favored by most Americans.
I'm don't think this is evident either. The contrary to natural law is positivism (or legal positivism), which basically says that authority (and often sometime morality) arises from social constructions (one example is that power comes from the people). It can be a very democratic theory.
Additionally, natural law has been used to justify a lot of un-western ideas. The Kings of Europe argued that their authority came from God. Similarly now, muslim nations justify most of their policies based on what they believe to be natural law.
I also think the two sides tend to talk past each other a lot, because they use "law" to mean either (a) legal laws in the case of positivists, or (b) natural law in the case of that camp. Here is some reading for anyone interested, although it is long and I must admit that I have not even read it myself.
Legal Positivism (Stanford Encyclopedia of Philosophy)
Natural Law Theories (Stanford Encyclopedia of Philosophy)
Actually, it would be the other way around. Slavery would be part of the original intent.
What's your stand on a constitutional amendment to define a marraige between a man and a woman?
Also, on the grenade launcher portion, who decides what is necessary for your own protection? Using that argument, I don't believe automatic weapons are necessary for your own protection. Would you support a ban on that? What if we strictly regulate the possetion of a grenade launcher?
And really, the reason the 'right to bear arms' was put in the constitution was not to protect yourself from some home intruder. It was to protect yourself from the government. If I'm not mistaken, England wanted to take away weapons which were then used to overthrow the government. The quote in the DOI "it is the Right of the People to alter or to abolish it, and to institute new Government" basically defines what they did. The government got to involved and it was the right of the people to abolish it. Using that same logic, grenade launchers, bombs, machine guns would all be necessary if the people decided it was time to alter or abolish the government. In all honesty, today 'the people' don't have the ability to alter or abolish the government except by using the government to do it which really doesn't count.
True, you can twist the logic to suit your own purposes, but does that really change the theory itself? You can use your own twisted version of Christianity to justify burning heretics at the stake, but does that mean that Christianity itself supports your view?
Which argument do you consider flawed?
I'm assuming it was my argument from those proposing an original intent analysis. Their response can be that slavery was part of the original intent. That is why the 13th, 14th, and 15th Amendments were passed. Slavery was not repugnant to the constitution prior to that time. The Dredd Scott decision seems to support such a view. Dred Scott - Wikipedia, the free encyclopedia
It doesn't necessarily change the theory, but it provides an argument for why our forms of government should not be based on theories of natural law. One could even believe in natural law, but find that it is so difficult to properly ascertain that it makes a bad basis on which to form a government.
I'm not sure how I stand on that issue. Imagine that:skeptical:.
I agree that the right to keep and bear arms was not for self defense from anything other than their own government. At the time, there really weren't so many overwhelming weapons available that could decisively beat an organized rebellion with rifles and handguns.
The whole point is that we do have the ability to alter or abolish our government through legal means if we had enough motivated people to do so. So I believe that does count. Imagine if we didn't have a system where we were capable of something like that. I sincerely hope that we do not continue down our road of disinterest long enough to lose that right.
Debating with you is kind of like trying to nail jello to a wall. You can take that as a compliment.:smile:
I have several problems with those who promulgate original intent.
My first is that I often don't like the results. This is not an especially convincing argument for anyone but me unfortunately. It is readily apparent to me though that the founders of our nation did not have everything figured out. They permitted slavery, only gave white males the right to vote, and did a relatively weak job of protecting free speech and religion. I have no desire for the supreme law of the land to be based on the intent of a bunch of rich old white guys who lived more than two centuries ago.
A more convincing argument is that it is very difficult to ascertain original intent. They lived over 200 years ago. Additionally, the framers were not one amorphous body with a single intent. They were all individuals who did not agree with each other on everything. Finding out the intent of one of them, as may be possible from the Federalist Papers for example, does not necessarily show the intent of the rest of them.
Almost any major document will inevitably be ambiguous in many ways. The Constitution certainly fits that description. I would much rather have those interpreting it base their decisions on sound reasoning with regard to things like democratic theory, natural rights, or future consequences, than on an attempt to figure out what people were thinking over 200 years ago.
My first is that I often don't like the results. This is not an especially convincing argument for anyone but me unfortunately. It is readily apparent to me though that the founders of our nation did not have everything figured out. They permitted slavery, only gave white males the right to vote, and did a relatively weak job of protecting free speech and religion. I have no desire for the supreme law of the land to be based on the intent of a bunch of rich old white guys who lived more than two centuries ago.
A more convincing argument is that it is very difficult to ascertain original intent. They lived over 200 years ago. Additionally, the framers were not one amorphous body with a single intent. They were all individuals who did not agree with each other on everything. Finding out the intent of one of them, as may be possible from the Federalist Papers for example, does not necessarily show the intent of the rest of them.
Almost any major document will inevitably be ambiguous in many ways. The Constitution certainly fits that description. I would much rather have those interpreting it base their decisions on sound reasoning with regard to things like democratic theory, natural rights, or future consequences, than on an attempt to figure out what people were thinking over 200 years ago.
I'll agree with your last paragraph there. Perhaps my belief in original intent is based on my belief that the Constitution is backed by natural law, so in essence, I believe it should be interpreted as such. Very true in your points that the framers had their own large set of inconsistencies there.
Our only ways to alter or abolish the government are through the government. If our government gets to a point where we would need to abolish it, we wouldn't be able to because the government would be so corrupt that we wouldn't be able to do it. Really the only way would be through the use of mutiny or our military.
I guess the option you would be talking about would be to elect officials to change it, but if it got to the point the governement needed to be abolished, do you really think 'the people' would have any real say in who was winning the elections?
That is why people absolutely must get involved before it heads down that road. Not like it's close to something like that now, but still.
Good answer on the marraige thing. I was interested in how you would defend support of it using your right infringing on me.
In general, I think an ammendment defining marraige between a man and a woman is one of the craziest things out there right now. I think the problems is the use of the term 'marraige' by the government. I think the government should define a civil union I believe both gay and hetero couples should get the same civil union rights. I believe marraige in the spirtual sense should stay out of the government. If a church wants deny marraige's in the spiritual sense, the government shouldn't get involved. The whole government debate should be based only on government ideas. I really have a problem with those that would give gay couples the same rights as hetero couples, but call it civil unions instead of marraiges. At least the ones that want to deny civil unions are making the government argument and not the religious argument.
Think if this kind of thing was used for a interracial marraiges. "Well we're going to give you the same rights and benefits as a same race couple, but you guys are going to have a 'civil union' while the same race couple has a 'marraige'." That would be outrageous.
I also hate the arguments that if gay marraige's are allowed, the typical hetero marraige will be ruined. So my parents are going to get a divorce it John and Tim get hitched? When Joe asks Sally to marry him, Sally will say "Well Joe, a few days ago I would have gladly said yes, but now that the government says I can marry Sue, I'm going to do that." Get real. Also, the notion that we should define it as a man and a woman is the best situation to raise kids. I agree that on the whole, that is probably true. But there are plenty of situations that are just tough on kids. Should divorce, having a child out of wedlock, having an interracial marraige all be made illegal? Of course not. The real reason people have an issue with gay marraige is they think is creepy and want to shun those people. Well it kinda creeps me out as well but thats not a reason to make people in those situations lower class citizens.
Thats absolutely right and I couldn't even imagine it getting to that state. But I think the point is that in the whole gun rights issue, the second amendment really shouldn't' be used by strict constructionists. Seems to me that the argument that the right to bear arms is constitutional would fall under the category of a living document. I believe they are using the constitution as an argument unfairly, especially considering there are other valid cases for their position.
I believe that gun owners should have more consequences. For example, if I own a gun and it gets stolen and used in a murder, I should get an extremely hefty punishment. To tell the truth, I don't know what my punishment would be right now. Maybe its pretty big. At the very least, I should lose the right to own any gun in the future and be have some sort of monetary penalty (not out of control though). No jail time though, that would just add to overcrowding. Basically, I failed in my responsibility to own the gun in a responsible manner. I didn't do enough to ensure that the weapon was used for personal safety. I'd be curious as to how the laws currently are.