Texas vs Roe vs Wade

[Sheilbh]

if you have a written constitution with enshrined rights (even if not enumerated), you are saved from the passing fancies of a government allowed to interpret an unwritten constitution however it pleases.  But a written-Constitution system can only survive when the arbiters of its meaning are in agreement that its meaning has been previously determined by persons as authoritative as themselves.  When you get a court full of people, like the US now has in its USSC, that absolutely consider themselves smarter than anyone on the court before them, you might as well have a Parliamentary system with only six MPs.

This isn't a written v unwritten constitution. Ireland and Australia both have written constitutions and Ireland needed to amend its constitution because lots of the rights and ideas in it were written by very conservative Catholics who felt the state's social policy should follow the Church (a bit like an updated version of Brain's 18th century slaveowners).

I don't think this court considers itself smarter than anyone else before them. I think their decisions are largely shaped by their political/policy preferences which they subsequently find legal arguments for - I could be wrong but I imagine part of the skill of being a Supreme Court advocate is less building a convincing legal argument, than it is presenting a plausible and convincing enough legal argument for the 5-6 justices you're aiming for. Again, maybe I'm too cynical, but I think this has probably almost always been the case.

Of course courts do shift positions because facts change, society changes, emergencies pass, sometimes I think they just feel their predecessors went a little too far and there needs to be a bit more clarity and rigour on a point - it isn't necessarily a bad thing because there is a long list of awful Supreme Court decisions that it's entirely right to overturn. I don't know enough, but I think, for example, it would be good if there was a bit of a swing back to protections for individuals under the fourth amendment.

Plus I think concepts of rights shift and develop. I think in the 21st century we'd expect a right to privacy, but in the 18th century with virtuous, Republican public life as an ideal it was probably more linked to concerns about fourth amendment issues. Similarly I think our concepts of collective rights especially around land and within indigenous communities is something that, for obvious reasons, didn't exist then. That's ignoring the obvious shifts of who is a person, or a citizen - what rights are universal and what attach to citizenship etc. Courts will always evolve slowly to reflect that.

Sheilbh, I think you are fundamentally wrong about this.  The alternative is not just slower but likely non existent within the US system.   Australia is a parliamentary system and so more flexible politically in the sense that all you really need is one election to elect one majority government and you are there.  Not so simple in the US system.  The US system is designed to not get things done.

I dont think that's right though - yes there's a difference but things could be done in the American system. But, as I say, an unwilling government in Australia was forced to give a referendum because of campaigners not because it was part of their political agenda and they then had to pass gay marriage because of the political pressure from the strong positive referendum result.

And I get that the US system is designed to protect a blocking minority opinion and gives undue worth to rural areas - filled with ruddy faced independent yeoman farmers. But it's a resistance that, historically, was overcome. I love the start of Caro's LBJ in the Senate book about the defences of the Senate being breached - it happened in the Progressive era, it happened in the New Deal era (with a fairly hostile court) and it happened in the sixties. I think things shifted, perhaps, with the failure of the ERA and Roe.

I think to an extent the ability of America to re-discover its ability to make change (one way or the other) through democratic channels is, I think, key to overcoming the issues with Trump and the GOP etc.

[crazy canuck]

I dont think that's right though - yes there's a difference but things could be done in the American system. But, as I say, an unwilling government in Australia was forced to give a referendum because of campaigners not because it was part of their political agenda and they then had to pass gay marriage because of the political pressure from the strong positive referendum result.

And I get that the US system is designed to protect a blocking minority opinion and gives undue worth to rural areas - filled with ruddy faced independent yeoman farmers. But it's a resistance that, historically, was overcome. I love the start of Caro's LBJ in the Senate book about the defences of the Senate being breached - it happened in the Progressive era, it happened in the New Deal era (with a fairly hostile court) and it happened in the sixties. I think things shifted, perhaps, with the failure of the ERA and Roe.

I think to an extent the ability of America to re-discover its ability to make change (one way or the other) through democratic channels is, I think, key to overcoming the issues with Trump and the GOP etc.

You are again using an example from a Parliamentary democracy to argue what might be effective in the US political system.  How does a national referendum even work in the context of the US constitution?  There is plenty of voter support for women to have the right to choose what happens to their bodies but as you point out the US political system is not set up to carry out those wishes.  It can be overtaken and controlled by minority views.  Now that the unhinged right has figured out how to game the system, I don't think another LBJ type maneuver is possible.

[grumbler]

The core point being made is fundamentally sound--rights that only exist because of a few men in black robes, can be taken away by a few men (and one woman) in black robes.

The point being made is fundamentally a mere truism.  Rights that only exist because of a few legislators in grey suits can be taken away by a  few legislators in grey suits.  Rights to free speech, freedom of religion, etc also only exist in practice because of the decisions of a few men (and women) in black robes. 

Special pleading that the right to privacy is unlike other enumerated rights can be trivially disproven by reference to the Ninth Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[crazy canuck]

The core point being made is fundamentally sound--rights that only exist because of a few men in black robes, can be taken away by a few men (and one woman) in black robes.

The point being made is fundamentally a mere truism.  Rights that only exist because of a few legislators in grey suits can be taken away by a  few legislators in grey suits.  Rights to free speech, freedom of religion, etc also only exist in practice because of the decisions of a few men (and women) in black robes. 

Special pleading that the right to privacy is unlike other enumerated rights can be trivially disproven by reference to the Ninth Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Otto's proposition is only accurate if one disavows the Rule of Law - I know you know this, and that it is obvious.  The Rule of Law has become so frayed in the US these days that I suppose it it unsurprising that Otto could make such a comment without fear of being the least bit controversial.

[Barrister]

The core point being made is fundamentally sound--rights that only exist because of a few men in black robes, can be taken away by a few men (and one woman) in black robes.

The point being made is fundamentally a mere truism.  Rights that only exist because of a few legislators in grey suits can be taken away by a  few legislators in grey suits.  Rights to free speech, freedom of religion, etc also only exist in practice because of the decisions of a few men (and women) in black robes. 

I feel like you're both missing the point - any and all rights are only as protected as the people in charge are willing to protect them.

Whether protecting human rights is up to people in black robes, or grey suits - neither protection is worth a damn if those in charge don't care to respect those rights.

The US has a Bill of Rights that protects a great many human rights.  The US still went through centuries of Jim Crow, segregation, criminalization of homosexuals, WWII detainment of Japanese, Iraq war era torture, and how many other abuses despite those rights being protected in the Constitution.

Canada, for most of it's history, had no constitutional protections for human rights.  Our Charter of Rights was only introduced in 1982, and is demonstrably weaker than the US Bill of Rights (there's no written equivalent to s. 1, or the Notwithstanding clause).  I am definitely not going to say that Canada was perfect pre-1982 or post-1982 - you can point to our treatment of aboriginals and the French for much of our history - but I think I can say that Canada was not appreciably worse in how we treated human rights when compared to the US during this time period.

There are valid arguments on either side about whether human rights should be primarily protected by the courts, or by elected officials.  I tend to go with the viewpoint that we need to rely on our elected officials.  But I don't think saying you need to rely more on elected officials means 'you don't respect human rights'.

[Sheilbh]

The point being made is fundamentally a mere truism.  Rights that only exist because of a few legislators in grey suits can be taken away by a  few legislators in grey suits.  Rights to free speech, freedom of religion, etc also only exist in practice because of the decisions of a few men (and women) in black robes. 

It's a truism but when people plead rights as the fundamental issue, those rights need to be put in their actual context. What do they mean, how are they created, how are they protected etc.

My point is that Otto's right - you need accompanying rights to establish broad social (or elite) consensus on a point if they are to be anything but contingent and transitory and always dependant on "good chaps" being on charge. It's a very thin reed.

You are again using an example from a Parliamentary democracy to argue what might be effective in the US political system.  How does a national referendum even work in the context of the US constitution?  There is plenty of voter support for women to have the right to choose what happens to their bodies but as you point out the US political system is not set up to carry out those wishes.  It can be overtaken and controlled by minority views.  Now that the unhinged right has figured out how to game the system, I don't think another LBJ type maneuver is possible.

I'm not saying America needs a nation referendum - I'm saying the referendum happened, the constitutional amendments happend in Ireland because of sustained campaigns building political support for abortion rights and for gay rights.

In the 70s the GOP realised, I think, how important the courts were for their objectives - I think that had been present in GOP circles all the way through the Warren and Burger courts. What changed with Roe was that they had a way to link the importance of the court for wider objectives/issues (voter rights, fourth amendment etc) to a new constituency of white evangelical voters. Politics for the GOP, especially after some disappointing appointments by Reagan and Bush, about delivering the court and I think they leveraged the anti-majoritarian bits of the US system to push that agenda - I've said many times but I think 2004 is the only time they were really pushing for a big, broad coalition national majority.

At the same time I think the ERA experience was really dispiriting for Democrats, especially in contrast to the perceived progress through the Warren-Burger courts and especially given the dislike and dirtiness of LBJ at that point. Rights were something you obtained through the court - they were yours by right; it was morally objectionable to even consider having to convince people (beyond the court) or build support for your position. I think for too long they stopped doing the campaigns and the politics through the democratic process and, like the GOP, focused on the court. I think that's maybe now being stripped away as people see what that means and the limits of a court.

As I say my point isn't really around courts v legislature - my point is that rights are political and if you rely on courts or legislatures to protect them, then you're screwed. You need to build political support for them across society. And just saying but it's a right is like appealing to revelation.

[Berkut]

I think saying in the United States, under our particular system, that you should rely on elected officials rather then relying on the actual Constitution, definitely means you do not respect human rights, or at least the particular human right in question.

We have a system that specifically says that human rights are protected, and NOT subject to the whims of elected officials. So no, you cannot pass a law that says that women have to get abortions, no matter what the elected officials think.

The SC is not some alternative, or secondary way of enacting legislation, or it should not be. It is a *check* on the legislature forgetting that they are constrained by the Bill of Rights, and the Constitution. It's not a third house of Congress, the way you guys are pretending it is, or rather, it isn't intended to be. That is why they are not elected.

And the reality is that those rights are not worth a damn if the people in charge don't respect them, AND are willing to subvert the Court to align with their beliefs. It does not HAVE to be that way, but it certainly has become that way.

The fact that the US system doesn't work as well as we would like doesn't mean that we should just accept that further egregious failures, like overturning Roe v Wade on completely bullshit grounds, is somehow just fine, especially when it is being over-turned not on any legal principle at all, but simply because a bunch of people went about subverting the system.

[grumbler]

The argument that rights are protected by a broad consensus fails in the case of Roe, because only 13% of Americans want to see it overturned, while 77% oppose overturning it. Yet it will be overturned.

https://www.npr.org/2019/06/07/730183531/poll-majority-want-to-keep-abortion-legal-but-they-also-want-restrictions

[Barrister]

I think saying in the United States, under our particular system, that you should rely on elected officials rather then relying on the actual Constitution, definitely means you do not respect human rights, or at least the particular human right in question.

We have a system that specifically says that human rights are protected, and NOT subject to the whims of elected officials. So no, you cannot pass a law that says that women have to get abortions, no matter what the elected officials think.

But you have a system that came up with decisions like Plessy v Ferguson.  You have Buck v Bell, which authorized the forced sterilization of thousands of women (which when I think of it is pretty analogous to forcing women to get abortions).  You have Korematsu v US which allowed the forced internment of Japanese-Americans.

[The Minsky Moment]

Otto,BB:

The right to privacy exists because people believe they have such rights, and that those rights are part of their constitutional heritage, regardless of what the history may be argued to suggest.  The men in black robes aren't inventing them, they are just echoing understandings that already pervade society.

As an example, take DC v. Heller, which held that the core right recognized and protected by the 2nd amendment is right of individual self-defense.  Although that opinion was written by the Court's most famous textualist and originalist, it makes little sense either as a reading of the plain text or in terms of its plausible original meaning and understanding. 

I don't say that as a partisan for a pro-gun control reading - I think there are plausible readings of the 2nd amendment that are both more restrictive or less restrictive than the reading adopted by Justice Scalia in Heller.  What is clear, however, is that the Heller ruling itself had little to do with what the constitution says, and pretty much everything to do with how people in 21st century American culture think about guns and their core purposes.  Indeed, after engaging in a tortuous and less than persuasive historical analysis, Scalia gives the game away in the conclusion:

There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

"Whatever the reason" - the vox populi triumphs, above and over an 18th century constitutional text that rather obviously evinces little direct concern over the difficulties a suburban Dad may face juggling a telephone and a Glock in the face of a suspected house burglar, or the hardships faced by a gun-toting but frail widow handling a rifle.

The right to privacy has always been a core concern in the American constitutional system, even if not spelled out using those exact words.  For the generation of the framers, privacy was conceived in terms that a late 18th century gentlemen would understand - to be secure in one's "papers", to be allowed to speak one's mind to one's neighbor or the members of one's dinner club, to avoid ones family and daughters being subjected to provide long duration hospitality and accommodation to hormonally-charged young officers of the King's army.  Womanly concerns like birth control would not have been considered.

But we live in the 21st century now, and we conceive of the universe of legitimate privacy interests differently then our constitutional framers in the late 18th century did.  It is a virtue of the US constitutional system that - based on a text that expresses principals and not specific cases - it contains the flexibility to update itself to that understanding.

[Barrister]

The argument that rights are protected by a broad consensus fails in the case of Roe, because only 13% of Americans want to see it overturned, while 77% oppose overturning it. Yet it will be overturned.

https://www.npr.org/2019/06/07/730183531/poll-majority-want-to-keep-abortion-legal-but-they-also-want-restrictions

What this shows is that US populace is very - nuanced in their opinions (you could also come up with less complimentary words).  26% of Americans would like Roe to stay in place, but with more restrictions added.  Only 18% of Americans think the right to an abortion should be unrestricted, while 61% support various levels of restrictions.

All of which goes to show that I think the GOP will regret what happens when Roe if/when overturned.  But why I also think it might be healthy if it does - given such broad disagreement in society I think it would be healthier for democracy to have those kinds of discussions out in the open in state legislatures, not decided behind closed doors at the USSC.



p.s. the wackiest stat from grumblers link is that 66% of Americans identify as pro-life, while 62% identify as pro-choice. 

[The Minsky Moment]

You have Buck v Bell, which authorized the forced sterilization of thousands of women (which when I think of it is pretty analogous to forcing women to get abortions). 

But as you seem to have realized, the reasoning of Buck v Bell is the same reasoning as the anti-Roe argument: that the 14th amendment should not be read as guaranteeing some right of personal bodily autonomy against the state and that such controversies should be resolved by free play of politics in the states.  If Michigan wants to forcible sterilize citizens of status "X" then they should either subject themselves to the judgment of the majority or move to Illinois.

[Sheilbh]

The argument that rights are protected by a broad consensus fails in the case of Roe, because only 13% of Americans want to see it overturned, while 77% oppose overturning it. Yet it will be overturned.

Not protected - because that relies on the state either through the courts or the political system or however. But, as I say, I think this has the potential to be a disaster for the Republicans that will discredit the court and it should become a huge mobilising issue for voters.

I'm not sure if that'll happen, I hope it does - but I think the original decision on Texas was a little bit of a canary in the coalmine which helped assess how far the court can go and my impression is it was pretty tepid, which I'm not sure will deter them.

[Iormlund]

The main thing that comes to my mind on this topic is, why are the Dems so awfully bad at politics?

How could they fail so completely? And are they going to do anything about it, or will they just shrug their shoulders and continue to be outplayed by the likes of Evil Mitch for decades to come?

[garbon]

The main thing that comes to my mind on this topic is, why are the Dems so awfully bad at politics?

How could they fail so completely? And are they going to do anything about it, or will they just shrug their shoulders and continue to be outplayed by the likes of Evil Mitch for decades to come?

So the Dems should just lie all the time like Republicans do?