Roe v. Wade (a response to someone who didn't allow comments)
I saw this quote on an LJ that I see, though the author did not allow comments on it. The context was a deeply negative reaction to a pending initiative in Mississippi that would define personhood in a way that would limit what is known as "reproductive rights" in some circles, and "abortion" in others.
Anyway, the quote: "Look, I am sick of this debate. Roe vs. Wade passed in 1973, when I was two years old."
(1) If you are sick of debate, you are sick of democracy. Debate is what fuels democracy, and the only time debate truly ends on something is when you have a large-scale consensus on something. Universal suffrage is a good example. That was debated for over 40 years, quite hotly, until the 19th Amendment was ratified shortly after World War I. Incidentally, when the amendment was passed, that pretty much resolved the debate, as repealing amendments, while possible, is very difficult and has only been done once (the 18th Amendment). The 2/3, 2/3, 3/4 requirements of a constitutional amendment ensure that there is substantial consensus on something before it is a *constitutional right* (as opposed to a legal right).
(1a) Roe v. Wade didn't just make abortion legal, which could have been done by legislation. It gave it the status of a constitutional right, which is a kind of super-legality that makes it very difficult to regulate.
(2) "Roe v. Wade passed..." Errrrr, no it didn't, and hence the entire problem. Roe v. Wade was the product of a divided Supreme Court, and *not* the product of legislation passed by Congress (or state legislatures). Furthermore, unlike Brown v. Topeka Board of Education, the USSC wasn't hanging its hat on an explicit provision of the Constitution, but on "penumbras." The USSC successively read into the Constitution that: (a) there was a "right to privacy," (b) that this right in turn applied to sexual matters, and (c) that this right in turn meant the government could not ban abortions. Which is certainly something well open to debate.
In my view, had the debate been allowed to proceed either as an explicit Constitutional amendment, or on a state-by-state basis, something would have "given" by now, and there would eventually have been a consensus. (To a certain extent, albeit with some court interference, this is happening with gay marriage.) Brown v. Topeka started a decade-long process that ultimately ended with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as well as a Constitutional amendment banning the poll tax.
Roe v. Wade didn't do that. It was an end-run around the democratic process, and it's caused no end of grief. It was an attempt to put the matter out of debate, and in a major sense, backfired dreadfully. It's also poisoned the process of selecting federal judges.
(3) By the way, I wonder if this person who commented has any problem with the USSC eventually overruling itself, in Brown v. Topeka, in the infamous Plessy v. Ferguson case from 1892. I mean, 50+ year gap there. Debate over. Right? (/sarcasm)
Anyway, the quote: "Look, I am sick of this debate. Roe vs. Wade passed in 1973, when I was two years old."
(1) If you are sick of debate, you are sick of democracy. Debate is what fuels democracy, and the only time debate truly ends on something is when you have a large-scale consensus on something. Universal suffrage is a good example. That was debated for over 40 years, quite hotly, until the 19th Amendment was ratified shortly after World War I. Incidentally, when the amendment was passed, that pretty much resolved the debate, as repealing amendments, while possible, is very difficult and has only been done once (the 18th Amendment). The 2/3, 2/3, 3/4 requirements of a constitutional amendment ensure that there is substantial consensus on something before it is a *constitutional right* (as opposed to a legal right).
(1a) Roe v. Wade didn't just make abortion legal, which could have been done by legislation. It gave it the status of a constitutional right, which is a kind of super-legality that makes it very difficult to regulate.
(2) "Roe v. Wade passed..." Errrrr, no it didn't, and hence the entire problem. Roe v. Wade was the product of a divided Supreme Court, and *not* the product of legislation passed by Congress (or state legislatures). Furthermore, unlike Brown v. Topeka Board of Education, the USSC wasn't hanging its hat on an explicit provision of the Constitution, but on "penumbras." The USSC successively read into the Constitution that: (a) there was a "right to privacy," (b) that this right in turn applied to sexual matters, and (c) that this right in turn meant the government could not ban abortions. Which is certainly something well open to debate.
In my view, had the debate been allowed to proceed either as an explicit Constitutional amendment, or on a state-by-state basis, something would have "given" by now, and there would eventually have been a consensus. (To a certain extent, albeit with some court interference, this is happening with gay marriage.) Brown v. Topeka started a decade-long process that ultimately ended with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as well as a Constitutional amendment banning the poll tax.
Roe v. Wade didn't do that. It was an end-run around the democratic process, and it's caused no end of grief. It was an attempt to put the matter out of debate, and in a major sense, backfired dreadfully. It's also poisoned the process of selecting federal judges.
(3) By the way, I wonder if this person who commented has any problem with the USSC eventually overruling itself, in Brown v. Topeka, in the infamous Plessy v. Ferguson case from 1892. I mean, 50+ year gap there. Debate over. Right? (/sarcasm)