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Kennedy’s Libertarian Revolution. Lawrence’s reach.
National Review Online ^ | July 10, 2003 | Randy E. Barnett

Posted on 07/10/2003 6:30:08 PM PDT by Sandy

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To: jmc813
It isn't. The Founders set up the document for a moral, self-governing people only. Who in the 18th Century would have thought that centuries later we'd have a 1st Amendment 'right' to create and view degrading images of people copulating, and a hidden 'right' to privacy to murder children? Or a hidden 'right' to privacy to renounce our inalienable rights, thereby making them alienable? Or a hidden 'right' to privacy to engage in sexual perversions? Perhaps next we'll see some libertarian-socialist state legalize perverted 'marriage.'
41 posted on 07/10/2003 10:09:19 PM PDT by Cultural Jihad
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To: Tribune7
Tribune7 wrote:
"What should constrain judges when interpreting the Constitution?"




The constitution itself.

-- But ultimately the people control all the checks & balances in our system to stop a runaway court.
42 posted on 07/10/2003 10:19:07 PM PDT by tpaine (Really, I'm trying to be a 'decent human being', but me flesh is weak)
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To: Cultural Jihad
I've got to be getting to bed, but allow me to leave you with this, and we shall continue in the morning....

a.)many of the Founding Fathers owned slaves, which in my opinion is 10 times more immoral than porn or gays.

b.)At wht point do you think we hit the point where we as a society has become so immoral that the Constitution should no longer apply?

With tht, I bid you a good evening.

43 posted on 07/10/2003 10:20:28 PM PDT by jmc813 (Check out the FR Big Brother 4 thread! http://www.freerepublic.com/focus/chat/943368/posts)
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To: tpaine
Why, in your opinion, is Oregons assisted suicide law unconstitutional?...evidentally it isn't under extension of this latest ruling - but it's a poor law - I've worked with "suicidal" patients - except perhaps for the terminally ill or those in intractable pain (who have the right to hasten their own deaths through living wills), it is almost invariably a temporary state and with time and proper care those who at one time wanted to die and would give consent and cooperate (and thus might die under the law) in fact at a later date no longer feel this way...
I'm going to be interested to see if and how the Supremes uphold the ban on assisted suicide when the Oregan law is challenged - perhaps given their recent penchant for finding "compelling state interests" for setting aside rights otherwise guaranteed in the Constitution they will decide that insuring "domestic tranquility" is enough of a reason to uphold the ban, given that so many people seem to find assisted suicide morally and ethically distasteful, and forcing people to abide by laws which go against their own sense of right and wrong can't help but rile them up........
44 posted on 07/10/2003 10:24:47 PM PDT by Intolerant in NJ
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To: tpaine
And how exactly are the people as a whole supposed to check the power of our rogue Supreme Court? Justices are unelected, unaccountable, and serve for a life term.

Realistically, it takes about an 80% level of support to enact an Amendment, and there is little likelyhood the court will pay any more attention to additions to the text of the Constitution than it pays to the current text and meaning of the Constitution.

So as long as the Court continues to rule with the support of a sizable leftist minority, as it does now, there is little to no likelyhood of the democratically accountable branches checking the Court.

This is why the judicial branch was designed specifically to be the weakest of the branches - not the overpowering behemoth it is today.
45 posted on 07/10/2003 10:28:45 PM PDT by swilhelm73
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To: MHGinTN
it was the underlying assumption that a woman's liberty trumped the LIFE of a non-person
-mhg-

Legally, under our constitution, that is correct, - until 'viablity' there is no legally separate person.

You have a better solution to the legal dilemma? - Lets see it.

46 posted on 07/10/2003 10:29:12 PM PDT by tpaine (Really, I'm trying to be a 'decent human being', but me flesh is weak)
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To: Cultural Jihad
until the activist judges find an inalienable right to an early death, slavery to vice, and the pursuit of unneeded suffering.

At the time of our founding I doubt whether anyone would have wanted to outlaw muskets, even though, say a cousin of yours might have shot himself in the eye by being careless with a ram-rod.

Understanding the dangers inherent in loading a musket then is no different from understanding the risks or dangers of having sex with a potential aids carrier.

That a twelve-year-old might be able to safely handle a musket would not necessarily equate to being as proficient when considering sexual practices or partners. Therefore, given the varying gradations of risk involved with many activities I would favor restrictions on minors as well as prosecuting adults who'd act to undermine such restrictions.

47 posted on 07/10/2003 10:31:42 PM PDT by budwiesest
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To: budwiesest
If musket loading resulted in mayhem and death more often than not, then it would be legitimate to ban them. There is nothing inherently immoral with owning or shooting a musket. The same cannot be said about homosexual sodomy.
48 posted on 07/10/2003 10:36:50 PM PDT by Cultural Jihad
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To: Cultural Jihad
The Libertarians couldn't care less about the Constitution, as long as their moral-liberalism is being lauded and upheld.

Until I found out about FR less than a year ago, I didn't really know that much about Libertarians. After reading a lot of their ideas, I see that they are a branch of Utopians, such as fascists and Communists, and leftist/liberals. They want an ideal fantasy world, based on their particular desires. They are all in the same boat - they want perfection in the here and now, and if someone else doesn't like their "perfection" - tough s**t. That's why the libertarians are usually very hateful and angry. The more lust for immediate pleasure and selfish gratification a person has in their heart, the more angry they are.

(Because they can never attain it, so are always frustrated.)

Utopian philosophies, when implemented, create the worst hells on earth.

49 posted on 07/10/2003 10:39:05 PM PDT by First Amendment
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To: pram
Utopian philosophies, when implemented, create the worst hells on earth.

Yes, indeed. Heaven forbid than an ambitious libertarian zealot ever obtain supreme power. There would be mass murder of the citizeny on this country on a scale not seen since the great Stalinist purges.

50 posted on 07/10/2003 10:43:30 PM PDT by Kevin Curry
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Comment #51 Removed by Moderator

To: tpaine; Admin Moderator

Excuse me? Perhaps you should start by committing murder. FreeRepublic is not a place to advocate your sort of lunacy, O ideologue.

52 posted on 07/10/2003 10:48:22 PM PDT by Cultural Jihad
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To: tpaine
Since 1973, when the Roe abortion decision was handed down from the Supreme Court of the United States, science has advanced our understanding of prenatal (before birth) life to a depth few could have anticipated. Most of the discoveries are unexplained for the general public, as we wend our way through daily life unaware of the amazing truths being revealed through honest hard science. The entire spectrum of prenatal discovery supports a rejection of abortion on demand and reinforces the correctness of protecting prenatal life, the way our society protects an adult individual at the end of their life.

In a recent article for First Things, Maureen L. Condic, PhD, Assistant professor of Neurobiology and Anatomy at the University of Utah, presents a convincing argument for meaning of the death protocol (used when organ harvesting is anticipated) to also be used when contemplating prenatal life. She has stated accurately that, “… the loss of integrated bodily function, not the loss of higher mental ability, is the defining legal characteristic of death.”

That is an accurate assessment of the meaning but there is confusion regarding this protocol because it addresses ‘brain death’, yet it doesn’t refer to loss of thinking ability. It should not be assumed that ‘being alive’ as a human being is solely a function of higher brain functioning, or even dependent upon the organ called brain.

To paraphrase Dr. Condic’s assertion: to be alive as an ORGANISM, the organism is functioning as an integrated whole, rather than life being defined solely from an organ, a form within the organism. The one organ defines alive notion was the perspective decades ago. People focused upon one organ when the heart was believed to be the center of function, before organ harvesting became a reality. When the heart stopped beating, the person was thought to be dead, thought to be no longer a functioning, integrated whole organism. Today, doctors routinely stop and start the heart, keeping the patient functioning for survival, viable as an integrated whole via artificial heart and lungs.

A person in an unrecoverable coma or vegetative state has no higher brain function, yet their body continues to function as an integrated whole. As Dr. Condic puts it, “Although such patients are clearly in a lamentable medical state, they are also clearly alive, [so] converting such patients into corpses requires some form of euthanasia. … Human life is defined by the ability to function as an integrated whole, not by mere presence of living human cells.”

Functioning as an integrated whole is far more complex than mere cellular structures, and the older the organism (in the first year from conception of the individual), the more the aliveness is spread out into sub-unit forms (the developing organs) of the alive yet integrated organism; the younger the human organism is, the less differentiated the sub-units are, the less spread out among forms is the integrated function.

A poster on an Internet discussion thread recently asserted that, “Unless you are looking at the issue [prenatal human life] solely from a religious standpoint, rational thinking minds would conclude that at 5-7 weeks, a fetus is not fully formed and is not a human life until at least 11-13 weeks.”

The first order in addressing such an assertion is the false comment that the earliest life of the conceptus is not human life. It is a human life, clearly, because the sex cells that conceived the new life are from human beings. The second glaring inaccuracy relates to the notion that at 5 – 7 weeks accepted definition holds the individual life to be in embryonic stage, not the fetal stage. [I prefer to use the term age as opposed to stage, since an age is but a segment along a continuum, and human lifetime is a continuum from conception until death.] Precise transition from embryo to fetus is not so easily assigned, however.

In order to accurately apply the meaning of the death protocol offered in Dr. Condic’s article, we will have to show how an embryo is more than a mere collection of cells. We will have to show how the embryo is in fact a functioning, integrated whole human organism. If the embryo can be defined on this basis, the definition of an alive, individual human being would fit, and the human being should be protected from exploitation and euthanasia.

What is the focus of the transition from embryo age to fetal age are the organs of the fetus. It is generally held that the organs are all in place when the individual life is redefined as a fetus. The gestational process during the fetal age is a process of the already constructed organs growing larger and more functional for survival. But during the fetal age, the not yet fully functional organs are not the sole sustainer of the individual life. The placenta is still drawing nourishment from the woman’s body and protecting the individual from being rejected as foreign tissue. If we are to apply the notion of a functioning integrated whole to define individual aliveness, the organs necessary for survival must all be included. Since the primitive brain stem and other organs such as primitive lungs, to be relied upon at a later age in the individual’s lifetime, are not yet fully functional, some other organ will have to be responsible for the functioning whole.

The first organ that a conceived human individual builds for its own survival is the placenta. This first organ is so important to the organism’s survival that in vitro fertilization doctors will not attempt implantation of an embryo until the encapsulating structure is in evidence. The newly constructed placental barrier is the organ that sends chemical messages to the uterine lining, for attachment to the woman’s life support system. This newly constructed barrier organ continues to grow and thicken, and is also what tricks the woman’s immune system into not rejecting the implanting life. The placenta functions as a survival capsule in which the alive, individual human being builds the other organs for later survival when exiting the womb.

Because of this amazing placental organ, an embryo is alive, functioning as an integrated whole organism. Further, it is an already alive organism that builds the organs of the later-age human body. It is not the woman’s body that builds the second individual on life support in her body.

The newly conceived life is a distinct and very much separate individual human being from the woman in whom it resides and grows. The Mother does not built the placental organ, nor any of the organs of the new individual, though it is from her body that the new individual receives protection and nourishment during the first age of its own lifetime, while that new individual organism builds the form (organs and structure) it will use for survival in the air world.

There is a popular argument that the transition from embryo to fetus is an acceptable stopping point for abortion on demand ... prior to the fetal stage, the woman would have exclusive right to determine which embryos will continue receiving a woman's life support and which will be disposed of for whatever reason the woman chooses to cite. If our society is to go down that road, let us not be dishonest in assigning non-human being status to the embryos euthanized.

It is scientifically impossible to discover a precise point when the individual alive being transitions from only embryonic to fully fetal in nature. Because that topic is deeply dependent on not so easily explained scientific facts, allow me to move to the next objection to such an arbitrary assignment of value when contemplating euthanasia.

Prior to the fetal age of the individual lifetime, the organs necessary for survival as a fully functional human being in the air world are not present but are being built by the embryo and looped into the primitive brain, the brain stem. The lungs are not sufficiently developed to support breathing until as old as twenty-one weeks from conception.

If survival functioning of brain and lungs and heart is what will be chosen to define an alive, viable, individual human being, it is important to note that the first organ built by the newly conceived individual, the first and crucial organ for survival is cast off at birth! That is why the choice of fetal age is so arbitrary in the false assertion that fetuses should be protected while embryos should not (should not, based on the specious notion of an integrated whole organism functioning for survival and growth and development only when the fetal age--with the organ structures for future survival--is reached). A human embryo fits the protocol for an alive, functioning, integrated whole organism, the same protocol upon which organ harvesting depends when contemplating the death of a human organism.

In the not so distant future, science will devise an artificial chamber, in which an alive, functioning, integrated whole human being in early fetal age may be sustained, kept alive. Following that seeming miracle, the artificial means will be devised for supporting the embryo into the fetal age. It is vital that our society rightly defines an individual human being’s aliveness, before the weighty issues of personhood, right to life, right of privacy, and property rights run headlong into the dehumanization of individual lifetimes.

In science, it is often the simplest solution that is the most elegant solution to a problem. Since the embryo builds its own survival capsule (the placenta) to allow it to have shelter and nourishment, it is elegantly factual to assert that the embryo is an alive, integrated whole for that age of its lifetime begun at conception. The embryo is no less an individual human being with at least one functioning organ that allows the integrated whole to survive into the future ages of the lifetime already up and running.

53 posted on 07/10/2003 10:50:34 PM PDT by MHGinTN
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Comment #54 Removed by Moderator

To: tpaine
until 'viablity' there is no legally separate person.

”viability”??? So we can terminate those with Cerebral palsy, Cystic fibrosis, Spina bifida, Tay-Sachs disease, Down syndrome, Muscular dystrophy…et al 3000 genetic diseases because they can’t exist on their own? That’s what your Liberaltarian social experiment is about? Thank God your political “system” is so irrelevant and common sense prevails.

Now you’re not only a hypocrite and a liar but no better than a Nazi.

55 posted on 07/10/2003 10:55:52 PM PDT by Clint N. Suhks
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To: Kevin Curry
Libertarians such as some posting here are like a compass that doesn't point north any more. Such a compass has all the little points, letters, degrees, the glass, moves around when you move it so it looks accurate. It's just that it is never accurate - except once in a while by accident. They are hollow, empty inside. They have a core of nothingness - because they do not have a conviction in an absolute. Although some of them have said they are Christian, maybe that breed are different?

Many are good at juggling words and are very intelligent, very intellectual. It's like being very good at grammar, speechifying, curlicues of handwriting - but empty of vital meaning. I don't even try to debate with them because it reminds me of trying to talk with very articulate mental patients. They argue one point, you argue back, and they reply with something that has not the least reference to what you said. It's kind of psychotic.

If somehow they could make their own little country, it would be the most hellish chaos and within a short time a totalitarian hell. No doubt about it. They are living in a belladonna alternate reality.
56 posted on 07/10/2003 10:56:33 PM PDT by First Amendment
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To: Cultural Jihad
Like minds eh?
57 posted on 07/10/2003 10:56:43 PM PDT by Clint N. Suhks
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To: Clint N. Suhks
The Browneshirts would use the full force of the state to protect heroin depots and crack houses. Their mindset is so ludicrous they'd be laughable if they weren't the stormtroopers of the Democratic Party.
58 posted on 07/10/2003 10:59:57 PM PDT by Cultural Jihad
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To: swilhelm73
This is why the judicial branch was designed specifically to be the weakest of the branches - not the overpowering behemoth it is today.
-73-

I have no further answers to your fantasy that our USSC is a behemoth out of control.
They still are 'weak', with no enforcement powers. In effect the texas lawmakers could draft another 'silly' law and tell them to go to hell.
Would Bush send in the troops?

59 posted on 07/10/2003 11:01:59 PM PDT by tpaine (Really, I'm trying to be a 'decent human being', but me flesh is weak)
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To: Cultural Jihad
If musket loading resulted in mayhem and death more often than not, then it would be legitimate to ban them.

If this is the yardstick being used then you may witness a lot of pissed off auto-makers. Not to mention tobacco cos. etc.

Your "more often than not" is a problem I admit, as I doubt most intelligent people would want to engage in taking such risks,(when this is the known result) but I'm not certain where the state's interests begin and where the individual's end when living in a supposedly free society.

Is it at 51% of deaths, 40% of deaths, 20% of deaths etc. from engaging in a particular 'liberty'? I mean, a particularly nasty tornado could render certain parts of Kansas "banned" forever.

60 posted on 07/10/2003 11:02:07 PM PDT by budwiesest
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