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What "the federal courts in America" did is state that the rights of other human beings are not up for a vote.

anonunivgrad 6y ago
The Supreme Court is not a tribunal on moral philosophy. It's tasked with interpreting the law, no more and no less. And in fact, it was up for a vote. Except the vote was of 9 people with lifetime tenure.
rayiner 6y ago
“Rights” are what other human beings agree to recognize. That’s just the nature of law as a construct. What the federal courts in America have done is set themselves up as a tribunal of elites for deciding moral issues that other countries decide democratically. This unsurprisingly causes a lot of friction. Same sex marriage actually wasn’t one of those areas—US opinion and that in other developed countries wasn’t far off, and it was legalized after it hit majority support. And Obergefell has a much stronger basis in law than other Supreme Court social decisions. There is a long line of precedent recognizing that marriage is a “fundamental right” protected by the constitution. But abortion and religion in schools are examples of where the court is significantly out of step with both the letter of the law and public opinion. Public opinion in America supports abortion in the first trimester and or after that. That’s the same moral balance as reflected in the laws of say Denmark, France, Spain, Germany, and Italy (where abortion is generally illegal after 10-14 weeks). But under Roe abortion cannot be banned until the end of the second trimester. So our elite tribunal has imposed an abortion regime in the US that’s inconsistent with what more liberal Europeans have. Same thing for religion in schools. 2/3 of Americans oppose the ban on school prayer. By contrast, instruction in public schools is a legal right in much of Europe, including the UK and Germany. Being out of step with the public can be justified if that’s what the letter of the law requires. What’s most perplexing about Roe in particular is that it’s out of step with public opinion (broader than what the public wants) and also has no basis in the constitutional text. What’s the source of the court’s authority in that context?
- tptacek 6y ago
  A difference between us and Europe is that our country was founded on maintaining a separation between the state (which runs the schools we're talking about) and religion, and Germany wasn't. The entire premise of the Constitution --- really of any constitution --- is to insulate those kinds of governing principles from public opinion.
  - anonunivgrad 6y ago
    What makes “killing the unborn is wrong” impermissible religious influence but “killing already-born people is wrong” not? Or why is it okay for people to vote to take one man’s property away to give to another, “because that is just”? Aren’t all of those statements equivalently “religious”? On what basis are people to make decisions if not by some set of moral axioms?
  - rayiner 6y ago
    Article 137 of the Weimar constitution, which is part of the German Basic Law, says: “There shall be no state church.” I think the best reading of the Establishment Clause is that it prohibits exactly that, plus Congress also can’t regulate state established churches (which existed at the time). See: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2430&context=hlr https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi... https://startingpointsjournal.com/what-is-the-original-meaning-of-the-establishment-clause/ https://startingpointsjournal.com/what-is-the-original-meani... > House’s final version: “Congress shall make no law establishing religion.” > The Senate responded with: “Congress shall make no law establishing articles of faith or a mode of worship.” > The Conference Committee came up with the final version, “Congress shall make no law respecting an establishment of religion.” The Committee’s addition of “respecting an” was not explained at the time but has been the subject of a great deal of recent commentary. In its own time, however, the clause generated none of the heated arguments that had accompanied church–state issues in the states.
    - tptacek 6y ago
      I stand corrected, with respect to Germany! Thanks!

The Supreme Court is not a tribunal on moral philosophy. It's tasked with interpreting the law, no more and no less. And in fact, it was up for a vote. Except the vote was of 9 people with lifetime tenure.

rayiner 6y ago

“Rights” are what other human beings agree to recognize. That’s just the nature of law as a construct. What the federal courts in America have done is set themselves up as a tribunal of elites for deciding moral issues that other countries decide democratically. This unsurprisingly causes a lot of friction. Same sex marriage actually wasn’t one of those areas—US opinion and that in other developed countries wasn’t far off, and it was legalized after it hit majority support. And Obergefell has a much stronger basis in law than other Supreme Court social decisions. There is a long line of precedent recognizing that marriage is a “fundamental right” protected by the constitution. But abortion and religion in schools are examples of where the court is significantly out of step with both the letter of the law and public opinion. Public opinion in America supports abortion in the first trimester and or after that. That’s the same moral balance as reflected in the laws of say Denmark, France, Spain, Germany, and Italy (where abortion is generally illegal after 10-14 weeks). But under Roe abortion cannot be banned until the end of the second trimester. So our elite tribunal has imposed an abortion regime in the US that’s inconsistent with what more liberal Europeans have. Same thing for religion in schools. 2/3 of Americans oppose the ban on school prayer. By contrast, instruction in public schools is a legal right in much of Europe, including the UK and Germany. Being out of step with the public can be justified if that’s what the letter of the law requires. What’s most perplexing about Roe in particular is that it’s out of step with public opinion (broader than what the public wants) and also has no basis in the constitutional text. What’s the source of the court’s authority in that context?

tptacek 6y ago
A difference between us and Europe is that our country was founded on maintaining a separation between the state (which runs the schools we're talking about) and religion, and Germany wasn't. The entire premise of the Constitution --- really of any constitution --- is to insulate those kinds of governing principles from public opinion.
- anonunivgrad 6y ago
  What makes “killing the unborn is wrong” impermissible religious influence but “killing already-born people is wrong” not? Or why is it okay for people to vote to take one man’s property away to give to another, “because that is just”? Aren’t all of those statements equivalently “religious”? On what basis are people to make decisions if not by some set of moral axioms?
- rayiner 6y ago
  Article 137 of the Weimar constitution, which is part of the German Basic Law, says: “There shall be no state church.” I think the best reading of the Establishment Clause is that it prohibits exactly that, plus Congress also can’t regulate state established churches (which existed at the time). See: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2430&context=hlr https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi... https://startingpointsjournal.com/what-is-the-original-meaning-of-the-establishment-clause/ https://startingpointsjournal.com/what-is-the-original-meani... > House’s final version: “Congress shall make no law establishing religion.” > The Senate responded with: “Congress shall make no law establishing articles of faith or a mode of worship.” > The Conference Committee came up with the final version, “Congress shall make no law respecting an establishment of religion.” The Committee’s addition of “respecting an” was not explained at the time but has been the subject of a great deal of recent commentary. In its own time, however, the clause generated none of the heated arguments that had accompanied church–state issues in the states.
  - tptacek 6y ago
    I stand corrected, with respect to Germany! Thanks!