Thursday, November 09, 2006

Tic, Tac, and Dough

A conservative jurist (say, in the mold of Justice Scalia) is often seen as being against things like gay rights and legalized abortion. It is more than just the fact that a conservative would naturally be against liberal positions on these issues. A conservative judge would typically look at the text of the Constitution and say that the right to privacy (and, consequently, a right to things like abortion) is nowhere to be found in the words of the Constitution.

This week, voters in South Dakota struck down the very strict anti-abortion law that had been passed by the legislature and signed by the governor. For tic tac dough, the win, and the car, please explain why this may be seen as a victory by those who support a conservative view of the Constitution.

No, I am not talking about timing and tactics -- saying that they should wait until they get another justice on the bench. Why would Justice Scalia view the vote in South Dakota as a victory?


Blogger Tony said...

My thought on the SD vote is that it is a positive because it got 44% support...

...even though it "would not allow for exceptions in the case of rape or incest."

A second exactly the same ballot question WITH that exception put into it likely will pass.

Then, considering the question was "in direct conflict with the U.S. Supreme Court's Roe v. Wade decision legalizing abortion..." and was supposed to be the springboard into the Supreme Court to directly challange Roe v Wade, the 2nd effort would also end up in court...likely on a fast track.

November 09, 2006 3:53 PM  
Blogger Derek Jensen said...

I don't know why Scalia would not support that law, except that he isn't really a true Conservative. Look at his vote on Raich vs. Ashcroft for example.

November 13, 2006 12:43 PM  
Blogger Peter said...

From: Dan Cohen
Sent: Thursday, November 09, 2006 10:35 AM
To: Swanson, Peter
Subject: Re: The election

Answer to your question re the S.D. vote and Scalia's response: because he would regard the decision as one properly made by the electorate and not by the judiciary.
Please send the prize money to
Dan Cohen
As soon as possible before the Democrats raise my taxes

November 13, 2006 2:55 PM  
Blogger Peter said...

Derek, Please explain...

November 13, 2006 3:12 PM  
Blogger Derek Jensen said...

I was thinking that in Raich vs. Ashcroft, Scalia voted for the side of the government, meaning that he in effect, sees no end to the powers of the federal government, with respect to the commerce clause. This reveals him as not being a true strict constructionist.

However, I think Cohen's answer is more accurate. However, I would also challenge it in the sense that a referendum is not really a decision being made by the electorate, but is more akin to mob rule.

November 14, 2006 10:01 PM  
Blogger Aaron B. Solem said...

Jensen: Correct me if I'm wrong, but in Raich Scalia's concurring opinion was based on his belief that the government was correct not because of the commerce clause but because of the necessary and proper clause. I haven’t read his opinion, but only remember reading something about it on NRO.

November 15, 2006 10:41 AM  

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