Thursday, July 21, 2005

Isn't that the situation we are in anyway?

I mean didn't Casey change the calculus of Roe anyway? I don't know for sure, but that was my understanding. It also begs the question of what would be wrong with Roe being refined by a series of future court decisions.

The only problem I have with such a situation is the inherent undemocratic nature of the process, that being the creation of laws from the bench. However, unlike my conservative bretheren, I recognize that our common law system almost explicitly allows for such "legislating from the bench". I would just rather we as a nation argue this point rather than somehow arriving at it from judicial decision because of the potentiality for reading Spencer's SocialStatics into the the Constitution.

On a side note, you mentioned a while back how we need to fetishizing the Constitution. I think that is definitely correct especially in regards to using the amendment process to overturn Supreme Court decisions that are patently unpopular, or wrongly decided. For an unpopular one, I don't have an example, but for a wrongly decided example, look at Buckley v. Valeo, at least from a lefty point of view.

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