What is the Constitutional Role of the USSC in Making Public Policy?

[DGS49]

It doesn't take a Constitutional scholar to know that the Federal courts, and specifically the U.S. Supreme Court, have no role in making public policy. This is basically the role of the legislature, and occasionally of the President/Governor.

And yet, when it published the decision of Roe v. Wade, the Court purported to define the policy for abortion for the entire United States, with chronological trigger points setting limits for the various states to act independently.

Is this not bullshit? The Court has no such power.

Then you look at the purely Constitutional issue: the foundation of the abortion policy declaration was a "right of privacy" that appears nowhere in the Constitution, and in fact does not exist.

Any lawyer who expresses any disagreement with this apparent reversal is either a fraud or an idiot.

 

[ReinyDays]

Yes ...

 

[Pellinore]

Constitutionally, very little. It was Marbury v. Madison that established judicial review in 1803, based largely on the understanding that the limits that the Constitution placed on laws would be meaningful without the ability of the Supreme Court to evaluate them; therefore, the Supreme Court must have that power, even though it isn't explicitly laid out in the document itself.

Which brings me to the second half of your post. The right to privacy is called an "unenumerated right"; it, too, is not explicitly written out in the Constitution, but you can tell it is still there because of how many other rights (such as proof against search and seizure) rely on it. Other unenumerated rights include our right to travel between states, to vote, to get married, to have kids, and to determine how those kids are to be raised. They're not explicit, but they exist, and there are piles and piles and years and decades of law and decisions based on them.

 

[$ecular#eckler]

The problem seems to be that the implied missions of the executive and judicial branches got mixed up, or are supposed to be shared in a contrasting manner, or something.

The judiciary is supposed to enforce the constitution and law. We see this in courtrooms - the judge is to make sure the court rules/laws are followed. The jury does the interpreting. It is absurd to expect the judiciary to be unbiased and then "interpret" the law. The law should be clear and irrefutable.

The executives seem to interpret the laws. That is why they sometimes do not "enforce" it, or pick and choose to enforce it. They interpret the law in accordance with the current economic aspects that they believe will be beneficial to the guidance of the nation.

Ultimately, things are mixed-up, because the Three-part Separation Theory is incomplete - there is no formula for subdividing the three parts and that is where the better understanding of the balance and check on government power is to be found.

 

[Care4all]

It doesn't take a Constitutional scholar to know that the Federal courts, and specifically the U.S. Supreme Court, have no role in making public policy. This is basically the role of the legislature, and occasionally of the President/Governor.

And yet, when it published the decision of Roe v. Wade, the Court purported to define the policy for abortion for the entire United States, with chronological trigger points setting limits for the various states to act independently.

Is this not bullshit? The Court has no such power.

Then you look at the purely Constitutional issue: the foundation of the abortion policy declaration was a "right of privacy" that appears nowhere in the Constitution, and in fact does not exist.

Any lawyer who expresses any disagreement with this apparent reversal is either a fraud or an idiot.

the question on the table was whether the State government, had the power given to them, to invade a woman's privacy, early in pregnancy.

Basically, when did the State government have an interest in this.... that gave them power over the citizen to make their own personal decisions?

I think in the Roe decision, the court determined citizens had a right to privacy and our own decisions on our own bodies and own medical decisions..... from government invasion, up to the point where there was another viable entity/person involved....

The state government had no right or power over our own personal lives....they in the State government didn't have some faux right or power to even know a woman had sex or got pregnant from it early on....

When she decides to make it public, the govt can know, along with everyone else, or when she is actually showing....months later.

The ruling wasn't a right to abortion, the ruling was a right to bodily autonomy, and the right to privacy which happened to include abortion, among many other private matters.... The right to have sex with whom you choose, the right to use birth control for married couples, then for single couples, the right to have sex outside of marriage, the right to marry a person of another race, the right to divorce, are all among the things that we all have a right to privacy with.....

And ALL were ILLEGAL for us at one time, but SC decisions determined the constitution gave us humans, the right to make all of those decisions without State government's invasion and control.

The constitution restricts federal and state government's power, and power over us.

The constitution gives us citizens rights, not just the rights listed, but all personal And fundamental rights for things not mentioned too.

 

[jwoodie]

The Supreme Court does not have Constitutional power to grant new "rights" any more than the power to remove them. Its sole duty is to settle disputes between the states and determine if existing laws violate the Constitution. The power to amend the Constitution is specifically left up to the states.

 

[Oddball]

What is the Constitutional Role of the USSC in Making Public Policy?​

None.

/thread

 

[task0778]

Constitutionally, very little. It was Marbury v. Madison that established judicial review in 1803, based largely on the understanding that the limits that the Constitution placed on laws would be meaningful without the ability of the Supreme Court to evaluate them; therefore, the Supreme Court must have that power, even though it isn't explicitly laid out in the document itself.

I do not agree that the Supreme Court has 'very little' role in making public policy, it has none at all. That function is solely in the purview of the legislative branch. What the Courts can do is look at the legislation that Congress or the states have passed and determine it's constitutionality; they should never make public policy.

The right to privacy is called an "unenumerated right"; it, too, is not explicitly written out in the Constitution, but you can tell it is still there because of how many other rights (such as proof against search and seizure) rely on it. Other unenumerated rights include our right to travel between states, to vote, to get married, to have kids, and to determine how those kids are to be raised. They're not explicit, but they exist, and there are piles and piles and years and decades of law and decisions based on them.

The right to privacy has to be based on a enumerated right, such as search and seizure. The gov't cannot invade your home and seize your property without a warrant, so there is a right to privacy implicit therein. The other unenumerated rights you speak of may not be listed in the Constitution but are deeply rooted in American life, history, and traditions. Under that umbrella, a right to some privacy is inferred cuz it's nobody else's business including the gov'ts.

BUT - the right to an abortion is not one of those unenumerated rights. In 1973, for more than 100 years in some places an abortion was illegal and therefore has no sound basis whatsoever to be considered a constitutional right since there is also no federal laws defining the terms and limits of abortions. That being the case, each state can make up their own abortion laws to fit their constituents, and in some cases the laws already existed. And that is the way our system of gov't is supposed to work and if some people are unhappy with that, well tough beans.

 

[ReinyDays]

I do not agree that the Supreme Court has 'very little' role in making public policy, it has none at all. That function is solely in the purview of the legislative branch. What the Courts can do is look at the legislation that Congress or the states have passed and determine it's constitutionality; they should never make public policy.




The right to privacy has to be based on a enumerated right, such as search and seizure. The gov't cannot invade your home and seize your property without a warrant, so there is a right to privacy implicit therein. The other unenumerated rights you speak of may not be listed in the Constitution but are deeply rooted in American life, history, and traditions. Under that umbrella, a right to some privacy is inferred cuz it's nobody else's business including the gov'ts.

BUT - the right to an abortion is not one of those unenumerated rights. In 1973, for more than 100 years in some places an abortion was illegal and therefore has no sound basis whatsoever to be considered a constitutional right since there is also no federal laws defining the terms and limits of abortions. That being the case, each state can make up their own abortion laws to fit their constituents, and in some cases the laws already existed. And that is the way our system of gov't is supposed to work and if some people are unhappy with that, well tough beans.

What compelling interest does the government have up inside a woman's "plumbing"? ... how would the government even find out a woman was pregnant and had an abortion? ... that's the privacy angle ... generally speaking, the government needs probable cause to search anything of ours ... a reason to search, not just "fishing" for wrong-doing ...

On the other hand, children are not property ... parents don't own them ... ultimately, it's the government's responsibility to watch over and protect all children ... Pope Francis' advice ...

In the mean time ... child support delinquencies grow ... it cost money to raise unwanted children ...

 

[task0778]

What compelling interest does the government have up inside a woman's "plumbing"?

None whatsoever. Hence, the Supreme Court has no grounds for deciding if and when an abortion ought to be constitutional. It's really as simple as that, there is nothing in the Constitution or in federal law that gives the Court any basis for deciding that issue.

Child support is a whole 'nother ballgame though and has nothing whatsoever to do with the abortion issue. Did the Court declare child support to be a constitutional right for the kids? I musta missed that one. But I do think there are federal laws regarding that when the dad lives in one state and his kids in another but for the most part that too is determined at the state and local level.

It seems as though you are arguing more about what should be rather than what is actually in the Constitution or in federal law. The Supreme Court does not decide constitutionality or legality based on what should be, but instead they rule based on their interpretation of what the Constitution and federal law actually says and means.

 

[ReinyDays]

None whatsoever. Hence, the Supreme Court has no grounds for deciding if and when an abortion ought to be constitutional. It's really as simple as that, there is nothing in the Constitution or in federal law that gives the Court any basis for deciding that issue.

This is the issue of privacy ... an unenumerated constitutional right ... if the government isn't allowed to know if she's had an abortion, what's the point of making new laws? ... none of this can be enforced ... or do we let the police go through medical records willy-nilly looking for crimes? ...

How do you feel about the other half of my argument ... Pope Francis' "we must protect the most vulnerable of our brothers and sisters" and nobody is more vulnerable than an unborn child ...

 

[task0778]

his is the issue of privacy ... an unenumerated constitutional right ... if the government isn't allowed to know if she's had an abortion, what's the point of making new laws? ... none of this can be enforced ... or do we let the police go through medical records willy-nilly looking for crimes? ...

I am probably missing the logic of your reasoning here, but let's start with this: the right to privacy is not in and of itself an unenumerated constitutional right, unless you can cite the Supreme Court case where that was established. I'm trying to make it clear the right to privacy might be inferred in certain cases when enjoined with an enumerated right, such as search and seizure, self-incrimination, etc. The point I'm trying to make is that the right to privacy does not exist on it's own merit regardless of the circumstances, it's got to be in association with a real no-shit constitutional right, which abortion definitely is not.

How do you feel about the other half of my argument ... Pope Francis' "we must protect the most vulnerable of our brothers and sisters" and nobody is more vulnerable than an unborn child ...

The pope is talking about what is the moral thing to do, whereas we are talking about the lawful and legal thing to do. I myself have said this quite often in opposing abortion as a legal right. Obviously, others differ in their opinions, and that's okay. We ought to be able to accept the reality that not everyone believes what we do, which is no doubt a big reason why there is no federal legislation regarding abortion, although there seems to be a significant support for legal abortions up to the 1st 13 weeks. After that the consensus swings the other way, most Americans do not support abortions after the 1st trimester.

Back to the Constitution - Roe v Wade tried to establish that as the law of the land but lacked the actual support to do that in the wording of the Constitution or federal law, or in accepted American history, customs, and traditions. It was not up to the Supreme Court in the 1973 case to make that distinction; what they said amounted to judicial activism and legislating from the bench on their part, and that is not within their purview. That is the function of the Legislative Branch of gov't, not 9 unelected people who do not answer to the people.

 

[M14 Shooter]

None. Zero. Zip. Nada.
The executive and legislative branch make policy; the USSC decides if that policy violates the constitution.

 

[GMCGeneral]

the question on the table was whether the State government, had the power given to them, to invade a woman's privacy, early in pregnancy.

Basically, when did the State government have an interest in this.... that gave them power over the citizen to make their own personal decisions?

I think in the Roe decision, the court determined citizens had a right to privacy and our own decisions on our own bodies and own medical decisions..... from government invasion, up to the point where there was another viable entity/person involved....

The state government had no right or power over our own personal lives....they in the State government didn't have some faux right or power to even know a woman had sex or got pregnant from it early on....

When she decides to make it public, the govt can know, along with everyone else, or when she is actually showing....months later.

The ruling wasn't a right to abortion, the ruling was a right to bodily autonomy, and the right to privacy which happened to include abortion, among many other private matters.... The right to have sex with whom you choose, the right to use birth control for married couples, then for single couples, the right to have sex outside of marriage, the right to marry a person of another race, the right to divorce, are all among the things that we all have a right to privacy with.....

And ALL were ILLEGAL for us at one time, but SC decisions determined the constitution gave us humans, the right to make all of those decisions without State government's invasion and control.

The constitution restricts federal and state government's power, and power over us.

The constitution gives us citizens rights, not just the rights listed, but all personal And fundamental rights for things not mentioned too.

Except of course to preach the Gospel of Truth, to worship the one and only true G-d of creation, and to shape laws according to His Word.

 

[Care4all]

Except of course to preach the Gospel of Truth, to worship the one and only true G-d of creation, and to shape laws according to His Word.

And in His Word, we have abortions, with bitter water, for wives that cheated on their husbands and got pregnant, that their Priest, performed, in the Old testament.