Your exact argument was made about slavery 150 years ago.  Why free the slaves?  People are used to it.

That's a classic straw man argument.  

In fact, the Roe v. Wade decision is modeled on the Dred Scott case.  (Which is the point that I will expand on when I have more time.)

I'll be interested to see it.  Perhaps you'll do a better job than Bush did with his famous remark that he wouldn't appoint justices that would have approved Dred Scott.  It seems that the anti-abortion movement recognizes this as code for a promise to overturn Roe v Wade.  He couldn't come out and honestly admit that he had an anti-abortion litmus test in mind.  

Copernicus, your explanation of the incorporation doctrine is just not correct.  I understand that you are getting it from another source, so I don't necessarily blame you.  But, your source is wrong.  There is no 19th Century concept of the incorporation doctrine.  Perhaps you could argue that the "national citizenship" concept had its roots in the Reconstruction era, but that doesn't mean that the incorporation doctrine, which is a special interpretation of national citizenship, existed at that time.  The early incorporation decisions take a very pragmatic approach and come at it more from the standpoint that the Reconstructionists didn't conceive of incorporation, but that it was somewhat necessary if the national citizenship concept was going to work.

That is something of a misrepresentation of what I said, David.  The incorporation doctrine was a judicial manifestation of what many originally understood to be intended by the federal Constitution.  It is sheer nonsense to think that the federalists were states' rightists who only intended the Constitution to restrict the power of the federal government to trample on individual liberties, and I think that you must realize that.  The Bill of Rights was a sop thrown to the Anti-Federalists by Madison in return for their support.  That much is true.  But it is clear that the Federalists, who had actually defeated the Anti-Federalists, did not intend the Constitution to undo what they had accomplished.  The 14th amendment was passed precisely to put an end to that ridiculous idea, and it still took many years for the intent of that amendment to be recognized by the courts.

As for my "source" being wrong, I am not getting all of my opinions from Leonard Levy.  I only mentioned him in connection with the First Amendment.  And before you start trashing his opinions, take notice that he is one of the most respected Constitutional scholars in the country.  Now I may or may not have gotten his opinions straight, so I can only recommend that people examine his arguments rather than form an impression from my secondhand account.  I can promise that his works are very readable.  He is a good writer.  On the matter of the First Amendment, he has done a considerable amount or research, and his findings were not always consistent with liberal or conservative prejudices.

My comment about slavery is not a straw man argument.  A straw man is a weak argument that is designed to fail.  (e.g. "the only reason someone wouldn't like broccoli is if it was bad for you.   Clearly, it's not bad for you, so everyone should like broccoli."  i.e. leaving out the fact that it tastes like crap.)

Your argument was a straw man.  You argued that Roe v Wade was based on Dred Scott.  Dred Scott was a travesty.  Ergo, Roe v Wade was a travesty.  You can knock over Dred Scott, but not necessarily Roe v Wade.

No, my argument about slavery was right on point.  In essence, I was pointing out that you were making an argumentum ad populum -- an argument to popularity.  "Lots of people like abortion rights, so it must be good."  The truth is that popularity or acceptance are not determinative of whether something is good or right.

In your own mind, you might have been accusing me of an argumentum ad populum.  However, you need to do a better job of connecting the dots.  I have no idea how you got from my argument to that characterization of it.  All I could see was that you were making some kind of connection between slavery and abortion rights.  This is exactly the kind of out-of-left-field remark that had puzzled so many news commentators when Bush brought up Dred Scott in connection with Supreme Court appointments.  It took a while for people to figure out that there was some kind of connection made between Roe v Wade and the Dred Scott case.  It has never been exactly clear how that connection was made, so I am glad to see you actually trying to make it here.  I can finally come to understand the coded message that he was sending his base.

The connection between Roe v. Wade and (Dredd) Scott v. Sanford is beyond dispute.  The Scott case was the first case where the Court applied the doctrine of substantive due process, which argues that a legislature cannot take away a protected right without sufficient justification.  Substantive due process has been the theory behind some of the worst decisions in the Court's history.  (i.e. Dredd Scott, Plessy v. Ferguson, Lochner v. New York and Roe v. Wade.)

This kind of facile argumentation might begin to make sense if you could argue that Dred Scott were based entirely on substantive due process, but you cannot.  Substantive due process was only a part of the argument.  Another key point in the case was the highly dubious ruling that slaves were not US citizens.  Hence, they had no right to due process.  The fact is that substantive due process makes perfect sense in the historical context under which the US Constitution was conceived and ratified.  A legislature cannot take away a protected right without sufficient justification becauese the Constitution only cedes authority from individuals to government.  The government therefore has to show that it has the constitutional authority to remove a right.  While we don't disagree that Dred Scott was a bad decision, we do disagree on the claim that substantive due process has been behind some of the worst decisions.  In fact, it has been a bulwark against government encroachment on civil rights.

Your argument was misleading in the following way.  You didn't criticize Roe v Wade because it was based on substantive due process.  You criticized it because it was based on Dred Scott.  In fact, what you meant (but did not make clear) was that Dred Scott was the first case to mention substantive due process and that all subsequent cases that used that particular argument were tainted.  That reasoning is flawed because Dred Scott only used substantive due process as part of its ruling.  It is illogical to argue that a false conclusion implies that ALL of the premises leading to that conclusion are false.

In Scott, the Court argued that the slave was not one of "We, the people" who were protected by the constitution.  They said that Scott was not a person protected by the constitution.  Once they removed him from the equation, it became a pure property dispute between the state and the slave owner.  Interestingly, the Court also argued to the consequences of ruling the other way.  They pointed out that if slaves were people, then they would have the right to bear arms, etc.  Pandemonium would be the result, and we just can't have that.  It was only by later recognizing the personhood of the slave that Dredd Scott was done away with.

And that was the proper way to do away with it.  Substantive due process was not actually a defense of slavery.  There was never any overt legal basis for slavery.  It was the dirty word that was never mentioned in the Constitution.  Slavery was obfuscated and ignored in the Constitution itself, except that the Constitution made provisions for regulating slavery.  This may have been seen as a necessary compromise to create the United States, but it was a shameful, nasty compromise that ultimately led to the Civil War.

Roe v. Wade also involved a dispute between two individuals.  If the dispute were between mom and baby, then the Court would not be able to apply constitutional analysis to the problem.  Instead, the Court followed the ACLU's reasoning that the fetus is not a "person" protected by the 14th Amendment.  Once the baby's rights were ignored, then it became a pure dispute between the state and the mom.  The Court also discussed the scientific question as to whether the fetus was even human.  This was in a time before ultrasound and much of the modern science we now enjoy.  Now, of course, we can take three-dimensional pictures of a young fetus, watch its heart beat, and enjoy its actions in the womb.  The scientific dispute that undergirded the Roe decision is no longer a dispute.   We know the baby is a human being from conception.

Now you are going off on a tangent and ignoring the very substantive arguments that convinced the court not to consider a fetus a "baby" (which implies a being that is viable outside of the mother's womb).  Historically, aborted fetuses have never been considered to have legal rights, and it is judicial activism to get a court to declare that they do have those rights.  For example, aborted fetuses have never required birth and death certificates.  They are not given names or social security numbers.  Roe v Wade actually recognized some rights for third trimester fetuses in that it saw a government interest in regulating third trimester pregnancies.  This actually contradicts the desires of many abortion rights activists, who think that the termination of such pregnancies should be a woman's choice alone.  

As for the "scientific question" of whether a fetus is "human", that is nonsense.  It is a semantic question.  Science can tell you about the human genome.  It cannot tell you whether a fetus at a certain stage of development ought to be given civil rights.  The only science that can tell you anything about whether a fetus is human is linguistic science.  And what linguists will tell you is that word meanings are highly ambiguous.  Ultimately, what is informing your concept of "human" is religion, not science.  Some religious doctrines take the position that souls are created at conception.  People who believe such doctrines would naturally avoid abortions.  Their attempt to impose that religious judgment on others through government intervention is simply not justified under our secular form of government.

So, just like in Scott, the Roe decision is based on the non-status of the person, and change will only come when we recognize the liberty interests of the fetus just like we challenged common acceptance 140 years ago to recognize the liberty rights of the slave.

Slaves were viable human beings outside the womb of the mother, and there was never any legal, scientific, or moral basis for denying them civil rights.  Non-viable fetuses, on the other hand, have seldom been given legal rights under any system of law throughout recorded history.  It is the height of irony to argue that one opposes judicial activism while, at the same time, advocating judicial appointments that will force such a radical change on the legal status of pregnancies.  What hypocrisy.

Copernicus, I think you ought to lay off the ad hominem, esp. of Rehnquist, who is probably the most respected jurist now (although that doesn't mean the most agreed with, and O'Connor might have passed him up for the moment due soley to her retirement).

Anyway, the fact that this discussion is happening should make both of your civics teachers proud.

They've been moved to the "Abortion and the Courts" thread in this forum.