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Friday, October 21, 2011

Kelo Not Long For This World?

US Supreme Court Justice Antonin Scalia has described Kelo v. City of New London as the third worst political decision by the High Court.  He was speaking at Chicago-Kent School of Law Monday last.  The ABA Journal had a spot on it, including this:
“My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” Scalia said. “But it has made very few mistakes of political judgment, of estimating how far ... it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade was another. ... And Kelo, I think, was a third.”
I agree with Justice Scalia that it was a mistake.

Regards  —  Cliff


Craig H said...

People who mistake Roe v Wade as a moral decision, and then conclude it's not right, frighten me. The government does NOT have the right to know the reproductive state of its citizens. Thinking otherwise is the worst sort of tyranny.

Ironic, as the Kelo v City of New London decision errs in the opposite direction, yet Anton can't wait to repeal IT.

Jack Mitchell said...

Roe v. Wade keeps the federal gov't where it doesn't belong. But should it be repealed, there are a number of states that will fill the vaccuum with very intrusive laws.

The state rights folks want the feds out of the way. That sounds right. But, it couldn't be more wrong.

C R Krieger said...

Abortion is a very charged issue.  Two hundred years ago it was legal in the Mid-West, but then made illegal, to protect women from unscrupulous physicians.  I am just now reading in Race After Hitler that there was a lot of confusion about abortion in Germany in the Summer of 1945 through 1946 as the local communities tried to deal with pregnancies due to rape within the context of existing laws, including a Reich secret law (I just "love" the concept) on abortion and race eugenics from March of 1945.

The real question with regard to abortion is when is the child a viable human being. My view is 12, but that may be a little extreme for some here.  If you go with Dr Peter Singer, it is out toward two years of age.  On the other hand, some think that at conception we are dealing with a human soul.  The concern on the part of some on the spectrum is that we are allowing to die babies that are alive after an abortion attempt.

Then there is the whole "abortion as a subtle eugenics effort" issue.  It may not exist, but the statistics suggest it is driving down the crime rate.

For me the interesting thing is that roughly 85% of Americans think abortions should be legal and roughly 85% of Americans think abortions are wrong.  (Right in Herman Cain's sweet spot on the issue.)  How do we square that circle?  The only way I can see is to (1) restrict abortions of convenience later in the pregnancy (thus avoiding what some might see as manslaughter) or (2) passing it back to the individual states and letting the citizens of each state sort it out as they see fit.  There is a third option, which is that we take the whole issue out of the public domain and publicly decry it but privately allow it.  Hypocrisy, but a solution that has worked at other times about as well as the current solution.

This is not an easy question and much as we think we know truth, I would bet, if I would be around to collect, that 100 years from now the public view will have modified a bit.  Abortion is a practice that goes back over four thousand years, so we are not really plowing new territory here.

I do admit that I thought about how the short blurb might end up focusing comment on abortion rather than Kelo.  Can we at least agree that Dred Scott was meant for good, but encouraged evil.

Regards  —  Cliff

Jack Mitchell said...

Women cannot be forced to be incubators.

We must suffer, for all intents and purposes, those around us. But women have someone INSIDE them.

I'm sure all these heady considerations Cliff mentions bear examination, but fall short in scope.

We should encourage and support a pregnancy, but we cannot conscript a uterus.

Free will is a burden?

Roe v Wade stifles states rights. It prevents states from putting a yolk on womens privacy and will.

Kelo can go back to the states, imho. If an act of God can sweep your belongings away and you get a check to move on, why not the public good?

C R Krieger said...

I commend this longish article.

Regards  —  Cliff

Craig H said...

Again, the correct reading of Roe v Wade has nothing to do with abortion. It's not an abortion issue--it's a privacy and unreasonable search issue. Trying to argue Roe v Wade in the context of abortion is why pro-lifers get so frustrated with it. Repealing Roe v Wade would imply to the government power to investigate and determine gestational states among private citizens and this cannot be right.

I get frustrated with righties who oppose lefty social legislation going completely hypocritical on this one. Can they/you not see how ridiculous it sounds to argue on the one hand that lefties shouldn't be able to foist lefty PC politics onto the public, while at the same time insisting that the government should be able to foist rightie pro-life politics onto the public???

It cannot be had both ways.

C R Krieger said...

I guess it's about privacy and not abortion, but it does talk to the need to balance the right to control of one's own body against the state's two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother's health.

The right to privacy thing, outside the context of abortion is of interest to me.  Is it OK for me to take my cats recent litter and throw them in a bag and drown them in the river?  Would it be wrong for a female to give birth at home and then strangle the result with its umbilical cord and then throw it out.

But, most interesting is why we would identify this as exclusively a 3/9 issue.  Are there not Democrats who oppose abortion and Republicans who support abortion?  I would think that we should be trying to identify those issues that cut across party lines.  Just because Ms Nancy Pelosi is outrance in her support of abortion does not mean that Herman Cain does not recognize that "right".

Regards  —  Cliff

C R Krieger said...

From dinner this evening, down at the Brew Pub, or whatever it is calling itself this week, one of the diners who claimed to be pro-choice, came the question of if hands off also means no Federal money to fund abortions.  Fair question.

Regards  —  Cliff