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Is The Expansion Of Civil Rights Irreversible?  
User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Posted (7 years 8 months 2 weeks 3 days 6 hours ago) and read 1856 times:

In thinking about the implications of a discussion pertaining to whether the beliefs of a particularly conservative political party were well-founded, the question came to mind some moments ago as to whether the expansion of rights by the United States Supreme Court can or should be legitimately reversed by the Court itself.

Technically, the Court can freely reverse its own decisions. However, is there a sense in which it would be morally wrong for the Court to reverse decisions that have expanded rights so as to limit them?

Please consider, for example, the following argument, modified from a post that I made in another thread advocating the view that the Constitution itself is not changed even when the Supreme Court changes its view on the Constitution:

Assume, for the moment, that the question is whether the Constitution guarantee of equal protection should extend to all forms of sexual relationships.

Quote:
1. The text of the Equal Protection Clause does not reference sexual relations.

2. The phrase "sexual relations" does not appear in the Constitution.

3. There are many cases valid today in which the application of the Equal Protection Clause has been held not to protect various citizens against various laws. For example, the Equal Protection Clause does not protect against certain forms of discrimination against white applicants -- who are citizens -- where there is a compelling state interest in affirmative action (referring here to the recent University of Michigan Law School case) in relation to the rules relevant to that case. Your implication that the Equal Protection Clause equally protects all citizens in all cases, producing a result that eliminates all discrimination against citizens, is flat wrong; it depends on the issue and the rule.

4. The Supreme Court in the Bowers case previously decided that states could, in fact, discriminate against homosexual sodomy. The later Romer case reversed that ruling to the extent incompatible with same. At some future time, another case could, by the same token, reverse the Romer case. Yet the fact is that the text of the Equal Protection Clause has not changed for centuries. The only way that this makes any sense is to say that the Equal Protection Clause has no intrinsic reference to sexual relations or in regard to any specific application of the law. The majority in Romer would not, and does not, contest this fact. If it did, there would be no role for the Supreme Court in deciding the application of any Constitutional provision. It is the interpretation of the Equal Protection Clause that has changed through the years -- and it can change in any direction.

If, hypothetically, the Supreme Court decides in a future case that Romer is wrong and adopts the position taken by the dissent, then that still doesn't mean that the Equal Protection Clause either does or does not specifically address the question of sexual relations. It only means that that certain component of Constitutional law that comprises the Court's interpretation of the Constitution has establshed that the Equal Protection Clause does not apply to protect against discrimination on the basis of homosexuality. Both by parity of logic and common sense, as well as by Constitutional and legal reasoning, therefore, neither then does the fact that Romer reverses Bowers mean that the Equal Protection Clause intrinsically references or contemplates sexual relations. If it wouldn't make sense to say that the Equal Protection Clause fails to protect against discrimination on the basis of sexuality in one case, then equally it wouldn't make sense to say that it does in fact instrinsically protect against it in another. The Equal Protection Clause states a principle -- not an application of that principle. The actual text of the Clause hasn't changed; merely the interpretation has changed.

Put another way, if, in a few years, Romer is reversed by the Court, would you therefore agree with those who may claim that the Equal Protection Clause intrinsically declines to protect against discrimination against homosexuality? I would think that you would not, and you would be right. You would argue that the Court made a mistake and would say that the Equal Protection Clause should protect against such discrimination. But, nevertheless, your argument wouldn't mean that, under Constitutional law, the Equal Protection Clause had changed, nor would it mean that reading the Clause would intrinsically compel everyone to support your view. Again: The Equal Protection Clause hasn't changed; it's merely the interpretation that has changed -- precisely as the interpretation of it has changed between Bowers and Romer. Under the principles of Marbury v. Madison, the state of the Constitutional law at that point would be that the Equal Protection Clause does not protect against such discrimination.

One should never assume that merely because the Supreme Court has stated that the Equal Protection Clause protects a certain class of individuals or as regards a specific kind of conduct in one case, that the Clause (or any other part of the Constitution of the United States considered in and of itself) has a specific reference to it. It does not, unless by the terms of the text itself, it does, irrespective of the truth that the results of the Court's interpretation of it as applicable at any given time are binding under Marbury. To do otherwise would be historical revisionism of the most fundamental and absurd kind.

Query: Given the above, even though, as I have argued, the physical text of the Constitution may be variously interpreted and even though such interpretations may be reversed, is there nevertheless some moral obligation on the Court that requires it never to reverse case so as to eliminate or greatly curtail rights that it has previously found to exist?

Thank you in advance for your considered responses to this question.

[Edited 2007-01-18 07:08:25]

46 replies: All unread, showing first 25:
 
User currently offlineLHMARK From United States of America, joined Jan 2000, 7255 posts, RR: 46
Reply 1, posted (7 years 8 months 2 weeks 3 days 5 hours ago) and read 1833 times:

Yes. The expansion of civil rights is irreversible.


"Sympathy is something that shouldn't be bestowed on the Yankees. Apparently it angers them." - Bob Feller
User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Reply 2, posted (7 years 8 months 2 weeks 3 days 5 hours ago) and read 1833 times:

Quoting LHMARK (Reply 1):
Yes. The expansion of civil rights is irreversible.

Would the right to abortion be included?


User currently offlineFalcon84 From , joined Dec 1969, posts, RR:
Reply 3, posted (7 years 8 months 2 weeks 2 days 23 hours ago) and read 1792 times:

Quoting LHMARK (Reply 1):
Yes. The expansion of civil rights is irreversible.

I disagree. If a extremely conservative court were ever in place-and I mean 9 Scalia's on the bench-then Civil Rights would be in grave danger, not recently won rights, but many of them.

Nothing is irreversable.

And I wonder why AF is so interested in this topic?


User currently offlineHalls120 From , joined Dec 1969, posts, RR:
Reply 4, posted (7 years 8 months 2 weeks 2 days 23 hours ago) and read 1787 times:

Quoting Falcon84 (Reply 3):
Quoting LHMARK (Reply 1):
Yes. The expansion of civil rights is irreversible.

I disagree. If a extremely conservative court were ever in place-and I mean 9 Scalia's on the bench-then Civil Rights would be in grave danger, not recently won rights, but many of them.

Nothing is irreversable.

Do I believe fundamental civil rights as guaranteed by the terms of the Constitution would be rolled back? Only if there were a second Constitutional Convention.

Do I believe fundamental civil rights as developed by 200 years of Supreme Court interpretation would be rolled back? Highly unlikely, even if there were 9 Scalias on the Court - which itself is almost impossible.

Will there be continued debate on what other rights ought to be considered fundamental? Yes. But that is the sign of a healthy democracy.

Quoting Falcon84 (Reply 3):
And I wonder why AF is so interested in this topic?

well, it could be that he his interested in the topic, or perhaps he wants to up his post count, or provide himself with yet another forum where he can insult other Anet members.

Probably all three.


User currently offlineANCFlyer From , joined Dec 1969, posts, RR:
Reply 5, posted (7 years 8 months 2 weeks 2 days 22 hours ago) and read 1775 times:

Quoting Halls120 (Reply 4):
Quoting Falcon84 (Reply 3):
And I wonder why AF is so interested in this topic?

well, it could be that he his interested in the topic, or perhaps he wants to up his post count, or provide himself with yet another forum where he can insult other Anet members.

I wish he'd answer the questions posed to him in other threads before he goes off in another, and another, and another . . . rather monotonous . . .


User currently offlinePanAmOldDC8 From Barbados, joined Dec 2006, 960 posts, RR: 1
Reply 6, posted (7 years 8 months 2 weeks 2 days 22 hours ago) and read 1773 times:

Quoting ANCFlyer (Reply 5):
wish he'd answer the questions posed to him in other threads before he goes off in another, and another, and another . . . rather monotonous . . .

It is his right to rant and rave, we don't have to answer him if we don't want too. No one has a gun at our heads



Barbados, CWC soon, can't wait
User currently offlineHalls120 From , joined Dec 1969, posts, RR:
Reply 7, posted (7 years 8 months 2 weeks 2 days 22 hours ago) and read 1761 times:

Quoting PanAmOldDC8 (Reply 6):
Quoting ANCFlyer (Reply 5):
wish he'd answer the questions posed to him in other threads before he goes off in another, and another, and another . . . rather monotonous . . .

It is his right to rant and rave, we don't have to answer him if we don't want too. No one has a gun at our heads

True. But an ASF post is like playing TV channel roulette. Spinning the dial, you stumble on two women fighting on the Jerry Springer show. You know you shouldn't be watching it, but you just can't help yourself.  Wink


User currently offlineAirCop From , joined Dec 1969, posts, RR:
Reply 8, posted (7 years 8 months 2 weeks 2 days 20 hours ago) and read 1735 times:

Quoting Halls120 (Reply 7):
True. But an ASF post is like playing TV channel roulette. Spinning the dial, you stumble on two women fighting on the Jerry Springer show. You know you shouldn't be watching it, but you just can't help yourself.

And we're the guests sitting on the stage. (Please don't throw a chair)

Quoting Halls120 (Reply 4):
Do I believe fundamental civil rights as developed by 200 years of Supreme Court interpretation would be rolled back?

If they were I would expect riots in the streets like the 1960's, unless Americans have grown to passive and they take their rights for granted. (Example: For the life of me, I still can't figure out why Americans put up with the TSA bullshit, but thats another topic)

Quoting Halls120 (Reply 4):
well, it could be that he his interested in the topic, or perhaps he wants to up his post count, or provide himself with yet another forum where he can insult other Anet members.

Appears with all his downtime AF has become our constitutional expert, which every forum needs.  cheerful . Does one get a toaster for having the largest post count at the end of the year?  checkeredflag  Couldn't help but notice that once again he revised his post after posting it.  redflag 


User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Reply 9, posted (7 years 8 months 2 weeks 2 days 18 hours ago) and read 1716 times:

Quoting AirCop (Reply 8):
Appears with all his downtime AF has become our constitutional expert, which every forum needs.

Yeah. Where's my check?

 Big grin

Quoting AirCop (Reply 8):

If they were I would expect riots in the streets like the 1960's, unless Americans have grown to passive and they take their rights for granted. (Example: For the life of me, I still can't figure out why Americans put up with the TSA bullshit, but thats another topic)

Query: If Romer were reversed, would most of America truly be moved to demonstrate? I'm not sure of that.

Quoting Falcon84 (Reply 3):
Nothing is irreversable.

And I wonder why AF is so interested in this topic?

Falcon, it's because I think that there is a real chance that abortion rights will, in fact, be rolled back under the Roberts Court.


User currently offlineAirCop From , joined Dec 1969, posts, RR:
Reply 10, posted (7 years 8 months 2 weeks 2 days 16 hours ago) and read 1703 times:

Quoting AerospaceFan (Reply 9):
Yeah. Where's my check?

You know its in the mail.

Quoting AerospaceFan (Reply 9):
it'srnbecause I think that there is a real chance that abortion rights will,rnin fact, be rolled back under the Roberts Court.

Which would be a shame, since that appears to the lighting rod issue for the far right..(Please note I am not taking sides on the abortion rights issue in this post)
If that happen what issue would the energize the right wing? What would the debate team at Liberty University argue.


User currently offlineAeroWesty From United States of America, joined Oct 2004, 20677 posts, RR: 62
Reply 11, posted (7 years 8 months 2 weeks 2 days 16 hours ago) and read 1700 times:

Quoting AerospaceFan (Reply 2):
Would the right to abortion be included?

Is abortion a "civil right"? I don't want to veer your topic off where you intended it to go, but since it seems you wanted to talk about abortion under the guise of civil rights, I believe it's a fair question, even though we know from experience that it might jeopardize the existence of the thread itself.



International Homo of Mystery
User currently offlineBushpilot From South Africa, joined Jul 2007, 0 posts, RR: 1
Reply 12, posted (7 years 8 months 2 weeks 2 days 16 hours ago) and read 1694 times:

I think our civil rights are the most valuable and important things we have as Americans. Why would we want to reverse them?

User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Reply 13, posted (7 years 8 months 2 weeks 2 days 15 hours ago) and read 1677 times:

Quoting Bushpilot (Reply 12):
I think our civil rights are the most valuable and important things we have as Americans. Why would we want to reverse them?

I would agree, in principle, but I think that the question is whether, hypothetically, there is a moral imperative against it. If the Supreme Court should act to roll back civil rights as I've mentioned, how could we argue against it?

Quoting AeroWesty (Reply 11):
Quoting AerospaceFan (Reply 2):
Would the right to abortion be included?

Is abortion a "civil right"?

A legitimate question -- and so, what is your answer?

Quoting AirCop (Reply 10):
If that happen what issue would the energize the right wing? What would the debate team at Liberty University argue.

I think that abortion is considered a civil right by many, or something close to it. However, I disagree that it is. I would imagine that a right-wing debate team would agree with me.

Quoting AirCop (Reply 10):
You know its in the mail.

That's what they all say.  Wink


User currently offlineAeroWesty From United States of America, joined Oct 2004, 20677 posts, RR: 62
Reply 14, posted (7 years 8 months 2 weeks 2 days 15 hours ago) and read 1670 times:

Quoting AerospaceFan (Reply 13):
A legitimate question -- and so, what is your answer?

It's a medical procedure, nothing more, nothing less. Some pediatricians refuse to do circumcisions, but you don't see elections fought over foreskins.



International Homo of Mystery
User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Reply 15, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1664 times:

Quoting AeroWesty (Reply 14):
It's a medical procedure, nothing more, nothing less. Some pediatricians refuse to do circumcisions, but you don't see elections fought over foreskins.

Well, in the same sense, capital punishment in California is just intravenous treatment. But I think that it's a very limited sense.


User currently offlineAeroWesty From United States of America, joined Oct 2004, 20677 posts, RR: 62
Reply 16, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1662 times:

Quoting AerospaceFan (Reply 15):
Well, in the same sense, capital punishment in California is just intravenous treatment.

Choosing to have a medical procedure done, and paying the price for one's crimes have nothing in common whatsoever.



International Homo of Mystery
User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Reply 17, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1660 times:

Quoting AeroWesty (Reply 16):
Choosing to have a medical procedure done, and paying the price for one's crimes have nothing in common whatsoever.

But whether there is a right to that choice is at issue, and that, I think, is seen as a civil right by many. If the latter are correct, then a rollback of that right would be a rollback of a civil right.


User currently offlineAeroWesty From United States of America, joined Oct 2004, 20677 posts, RR: 62
Reply 18, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1658 times:

Quoting AerospaceFan (Reply 17):
But whether there is a right to that choice is at issue, and that, I think, is seen as a civil right by many. If the latter are correct, then a rollback of that right would be a rollback of a civil right.

A right to what? The medical procedure for abortion or the killing of a convicted criminal?

I'll wait for the edit to your above reply before continuing, so we understand what you're talking about.



International Homo of Mystery
User currently offlineAerospaceFan From , joined Dec 1969, posts, RR:
Reply 19, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1655 times:

Quoting AeroWesty (Reply 18):
A right to what? The medical procedure for abortion or the killing of a convicted criminal?

The right to choose to have the procedure that kills the unborn child. They see this as their right.


User currently offlineAeroWesty From United States of America, joined Oct 2004, 20677 posts, RR: 62
Reply 20, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1649 times:

Quoting AerospaceFan (Reply 19):
They see this as their right.

It's a medical procedure. You have a "right" to medical procedures of your choosing without having to make it into a "civil right" that requires legislation or court orders to accomplish.



International Homo of Mystery
User currently offlineBushpilot From South Africa, joined Jul 2007, 0 posts, RR: 1
Reply 21, posted (7 years 8 months 2 weeks 2 days 14 hours ago) and read 1637 times:

Quoting AerospaceFan (Reply 13):
how could we argue against it?

Revolution.

Quoting AerospaceFan (Reply 13):
Quoting AeroWesty (Reply 11):
Quoting AerospaceFan (Reply 2):
Would the right to abortion be included?

Is abortion a "civil right"?

A legitimate question -- and so, what is your answer?

The civil right here is not extended to an unborn thing. It is about the woman carrying that fetus and her right to choose what medical procedures are necessary for own health.

Quoting AeroWesty (Reply 14):
but you don't see elections fought over foreskins.

Now that would make for an interesting race.


User currently offlineCastleIsland From , joined Dec 1969, posts, RR:
Reply 22, posted (7 years 8 months 2 weeks 2 days 13 hours ago) and read 1630 times:

Quoting AeroWesty (Reply 20):
You have a "right" to medical procedures of your choosing without having to make it into a "civil right" that requires legislation or court orders to accomplish

But 'Westy, that's exactly what it took to allow abortion.


User currently offlineAeroWesty From United States of America, joined Oct 2004, 20677 posts, RR: 62
Reply 23, posted (7 years 8 months 2 weeks 2 days 13 hours ago) and read 1623 times:

Quoting CastleIsland (Reply 22):
But 'Westy, that's exactly what it took to allow abortion.

Of course, but I don't believe it should have been outlawed in the first place. I believe too many basic "human rights" have been the subject of legislation or court decisions that never should have been an issue in the first place. Is my being gay or you being straight a "human right" or a "civil right"? Funny how hets don't need "civil rights" for what comes naturally to them, whereas what comes naturally to me, and harms no one, has been the subject of legislation and court decisions.



International Homo of Mystery
User currently offlineCastleIsland From , joined Dec 1969, posts, RR:
Reply 24, posted (7 years 8 months 2 weeks 2 days 13 hours ago) and read 1620 times:

Quoting AeroWesty (Reply 23):
Funny how hets don't need "civil rights" for what comes naturally to them, whereas what comes naturally to me, and harms no one, has been the subject of legislation and court decisions.

Nicely put. While I've always supported gay rights, the way you say that makes it clear that the mere concept that people do or do not support these rights is ridiculous. In this sort of matter, people should just be.


25 AerospaceFan : That doesn't jibe with the fact that the law gives the right to life to an unborn child in a criminal setting, as follows: If a pregnant woman is kil
26 AeroWesty : That law is not identical in every jurisdiction around the world. Obviously, it's open to interpretation, and may even depend upon how far advanced t
27 AerospaceFan : I think that the right to life of an unborn child is Constitutionally unquestioned under the circumstances I've noted, and if you find any jurisdicti
28 AeroWesty : The topic of this thread is "civil rights" and whether they are "irreversible", is it not? You're now veering off onto a tangent of rights in the cas
29 Post contains images Halls120 : Wow. Just how many people on death row volunteer to have the needle stuck in their arm? inmates on death row have NO choice in the matter. How can yo
30 Bushpilot : But the theory and decision being that the right of the woman carrying that unborn child trumps the right of the unborn. You are comparing a US supre
31 AerospaceFan : What I'm saying is that it is within the ambit of state legislatures under our Constitution to pass laws that essentially confer the civil right to l
32 Post contains images AirCop : Hold on here AF, here you talking about civil rights and the rights of the unborn, yet on the Border Patrol thread, you stated or implied (waiting for
33 Post contains images AeroWesty : I did try to keep this thread on track here: ... but it seems as though I've been ignored. Can't say I didn't give it the old college try.
34 AerospaceFan : No -- I was referring to the "fleeing felon" doctrine of criminal law. Not any fleeing person. The circumstances of those Border Patrol agents were u
35 AerospaceFan : The question revolves around civil rights, which may include the right to abortion, and whether the Court should be morally barred from reversing the
36 AeroWesty : Why thank you. I believe there were a few others who had similar concerns, and I do recall reading the following in another thread, so I'm not sure w
37 Post contains links AerospaceFan : Not everyone agrees with you. The American Psychological Association, for example, considers abortion a civil right. Please see: http://cpcworldnews.
38 AeroWesty : So? The American Psychiatric Association used to think that homosexuality was a mental disorder up until sometime in the 60s/70s.
39 Post contains links AerospaceFan : All right. Ever heard of Betty Friedan, the famous feminist? A quick Google search found: http://66.218.69.11/search/cache?p=a...t%22&d=RwGsj0VuOAMJ&
40 AeroWesty : Yes, of course. I'll go over this with you once again: My position has already been clearly stated. I'm not sure why you're asking me to state the sa
41 AerospaceFan : You misunderstand -- I'm reacting to your allegation that the APA's view might be erroneous by citing another source -- in this case, a reference to
42 AeroWesty : Of course she would refer to it that way, since abortion had been legislated. Every author speaks to his/her audience in terms that they understand a
43 Halls120 : Of course he does, which is why he's gone partially mute. In typical ASF fashion, when he has no ability to respond to a post that doesn't involve so
44 CastleIsland : I see a distinction as well, but you started this thread about civil rights, and then snuk (sic) abortion in here later.
45 AerospaceFan : Abortion might very well be seen as a civil right, CastleIsland. I've already proved that.
46 Halls120 : Wow. You've "proved" that something "might" be a civil right. Give yourself a gold star!
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