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Originally posted by sgtclub
I don't agree with this end run any more than I agree with the "new" rules for confirming judges, which are surely not what the framers invisioned. Point is, this is not a one sided problem.
Please tell me where their is a right to abortion in the Constitution. Now this may or may not be good policy, but the words are certainly not explicitly in there, so it is at least debatable whether the framers intended such right to exist. Wasn't the SC interpretation, then, away of the left "getting it's way. Why not require proponents to garner sufficient support to work the issue through the system instead of doing an end run?
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I'm getting the feeling that we're talking past each other.
You seem to be focusing on the fact that both sides of the political aisle have beefs about what they think should or should not be constitutional. I agree that in that respect, this is not a one-sided problem.
My problem is more with the tactics that the GOP is considering -- that if they're unsuccessful in legislating this prohibition, and if they can't pass an amendment enacting this prohibition, that somehow removing the question from the federal courts is somehow legitimate. Instead of getting the outcome they want with the game as it currently stands, or changing the rules (as they're permitted to do) so that they'll get the outcome the want on the substance, they're essentually deciding to take the ball home, so that the game never gets played.
I don't quite follow your abortion example. Are you saying, what if SCOTUS said there was no abortion right, what should its proponents do?
If so, then abortion proponents -- in the event that they made their case to SCOTUS that such a right existed in the constitution and failed -- then they should pass a law creating that right, and defend its constitutionality if needed. If they fail at THAT, then they should have to amend the constitution to create such a right.
At that point, I'm afraid your analogy breaks down. The GOP today wants to deny the potential observance of a right to a group of people, and therefore would prevent most federal courts from even considering the question.
Under your hypo, abortion proponents would be trying to encourage federal courts to observe what would then be a new right that they had earlier denied exists -- so Congressional restriction of Fed. Jur. based on the substance of the dispute makes little sense.
Gattigap
