As to Roe, I am not sure what your point is. I never suggested that the Court has done anything to modify Roe. Carhart is a very minor limitation. As long as Kennedy is the swing vote, it would be counter-productive to take an abortion case as there are not enough votes to modify Roe. That, by the way, is the argument for conservative justices this election; we do not know for certain that Roberts and Alito would overturn Roe or how they would modify it, but with one more appointment we would find out. MM may wax hysterical about whether the detainees may appeal military tribunals to only the DC circuit court (as they could prior to the recent ruling) or multiple courts (as they now can), but it seems to me that the next four years represent the best chance to modify Roe since the early 90′s.

I think this indicates rather that there is a disagreement among the commentators about the proper role of the judiciary. There is often a tension between a judge’s personal preferences and the law.

The majority in Roe resolved that tension in favor of their own preferences, and basically ignored the text of the document they were purportedly interpreting. The judicial philosophy you suggest, MM, justifies Roe. A more modest view of the role of the judiciary emphasizing the role of the judge as an interpreter of laws would not lead to Roe. I am not familar enough with the relevant jurisdictional questions to comment on the facts in this decision, but I submit to you that neither are 95% of the other commentators on this post.

It’s fortunate that we have individuals privy to such secrets among the VN commentators. Our very own Scott Mclellan, minus the book deal. Do you have any other secrets (or unsubstantiated accusations, rather) you would like to share?

Likewise, it is wholly inadequate to judge this moral issue within the narrow confines of a positivist constitution. It does not give judges license to violate the moral law.

It’s hard to tell what you mean by this, but Roe is the “law of the land” only in the sense that the Supreme Court once said it; the Supreme Court is always able to say otherwise, and indeed, it should say otherwise if it wishes to be consistent with what the Constitution actually says. That in no way contradicts the notion — expressed by feddie and blackadder here — that in a case like the military tribunals case, the Supreme Court should confine itself to a proper interpretation of the Constitution. Indeed, the argument is precisely the same in both cases: Whether here or in Roe, the Supreme Court’s role in the American system is to interpret the Constitution as written, not to invent new rights (whether the right to abortion or the right of foreign combatants to obtain habeas corpus review in civilian courts).

I’m not saying that the Supreme Court was wrong or right in the military tribunals case, to be sure; I’d have to do much more study even to venture an opinion. I’m just saying that conceptually, the arguments seem the same both in this case and in Roe: On one side you have liberal Justices saying that an expansive interpretation of the due process clause requires [greater freedom for abortion, greater access to habeas], and on the other side you have conservative Justices saying that the due process clause doesn’t actually require those things.

Like many sophists, some people want it both ways.. judges can’t change things it’s the law, but my interpretation of the law is the real law and can get rid of the law if I say so.

I don’t think anyone can come up with a response to this unless you formulate it first as a coherent and grammatical sentence.

Roe isn’t based on any real interpretation of constitutional law. It was nothing less than rule by judicial fiat. Most intellectually honest liberal conlaw types will concede this point when pressed. It’s made up law, plain and simple.

I t wuld appear that the fact the UNited States in the future might have to occupy some country is a realistic possibility. I don’t think that fact will gfo away in the years to come if we are attacked and we must go after the terrorist groups that did not attack. For instance I am not hearing a uproar about getting out of Afghansitan. Needless to say with delvelopment the last few months we might be engaging what to do with those people we capture very very soon. Shall we just leave them there or not will be the question

My point is until this new creature is classified , since there is a reluctance to put them under POW status, then I think the system we have or at least had was workable. It has been replaced by something that is indeed up in the air and is one of my main objections to these ruling

Like many sophists, some people want it both ways.. judges can’t change things it’s the law, but my interpretation of the law is the real law and can get rid of the law if I say so.