Texas vs Roe vs Wade

[The Brain]

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?

I don't know about bad. They're blaming social media. Would people bad at politics do that? No, winners would.

[crazy canuck]

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?

Winning the popular vote is not enough, given the structural problems in the US (low population rural states getting 2 senators and the distribution of electoral college votes) the Dems need to be that much better at politics and the Republicans can just hunker down and count on their minority of votes to govern the country.

[Berkut]

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.

But Beeb has already stated that he thinks those kinds of laws are fine, if regrettable. He believes that the only personal liberty that exists is whatever the State decides you have, and no more.

[crazy canuck]

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.

Your view that rights are only political is I suspect very much a product of the constitutional environment in which you have been legally trained.  I saw both perspectives as the Charter was created and then developed.  Canada was a country where the judiciary would frequently refuse to make judgements it deemed to be within the jurisdiction of Parliament.   But the development of  Charter jurisprudence changed all of that.  Now legislative decisions are tested against the provisions of the Charter routinely.  The Courts analysis is not yet political - we have not gone down the road of the politicization of the Court, like our friends to our South.  Not yet anyway.  I doubt many Canadians now would accept that their rights are only political.  A cultural norm has developed that our rights are in fact protected by the Charter and the oversight function the court has on governmental actions and legislation.  Just as the American system is designed to do. 

Your assertion that all rights are merely political is a tip of the hat to the unhinged right and makes our Charter and the American constitution meaningless.  They are fundamentally designed to protect against the tyranny of the majority, not merely puppet it.

[The Minsky Moment]

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 that is unfair to say - the political mobilization behind ERA was very impressive.  It passed both houses, was publicly supported by all three presidential administrations during its ratification window, and 35 states ratified.   It's significant to note that no subsequent proposed amendment has gotten off the ground much less come close to that progress.  The takeaway from the ERA, which is blindingly obviously now, is that in a political epoch of intensified partisanship, constitutional change through amendment is a political impossibility, regardless of mobilization or effort.

[Sheilbh]

I think it's more to do with my left-wing reading/attitudes

[Sheilbh]

I think that is unfair to say - the political mobilization behind ERA was very impressive.  It passed both houses, was publicly supported by all three presidential administrations during its ratification window, and 35 states ratified.   It's significant to note that no subsequent proposed amendment has gotten off the ground much less come close to that progress.  The takeaway from the ERA, which is blindingly obviously now, is that in a political epoch of intensified partisanship, constitutional change through amendment is a political impossibility, regardless of mobilization or effort.

I don't dispute that for a second - my point was the experience of that impressive mobilisation failing was dispiriting and re-focused the liberal-left to the courts. Especially because they had that contrast of mobilisation that failed with test cases in the Supreme Court that made huge leaps.

As I say I think there's a twin process of Republicans growing increasingly focused on the court and its composition/ideology, while Democrats move to more of a position of pursuing rights through the courts - there may be an element of that being a natural route for parties when they don't have the executive too and especially with an annoyingly teflon President like Reagan.

But I think the left needs to get back to mobilisation and campaigns because I think that's going to do a lot more than this court to protect people rights if, say, Trump wins again.

[crazy canuck]

If Trump wins again the balloon goes up.

[OttoVonBismarck]

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.

The legislature however generally responds to the will of the people, and thus rights enshrined in legislation are rarely rolled back, as they generally represent an arrived upon broad consensus of the public at large. There is no such reality with judicially delineated rights.

[OttoVonBismarck]

The right to privacy I would concede has always been a core right, but what that right covers was not fixed with some universal truth in the 18th century. There is no reading of the right to privacy's history that would suggest any meaningful belief that it protected the right to procure an abortion for the first 190 odd years of American history. Are you suggesting that way back in the mid-18th century when the English common law right to privacy was first fleshed out in an English court, it innately covered a right to procure an abortion? And we just "realized this" some 200 years later? I think not.

I think the reality is the broad right to privacy, in the specific, is a matter of subjective opinion, and the court ruled based on subjective opinions based on mid-20th century mores in Roe. I think such decision should primarily be left to legislatures.

[Barrister]

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.

But Beeb has already stated that he thinks those kinds of laws are fine, if regrettable. He believes that the only personal liberty that exists is whatever the State decides you have, and no more.

And here we go.

You can fuck right off Berkut.

[Barrister]

Your view that rights are only political is I suspect very much a product of the constitutional environment in which you have been legally trained.  I saw both perspectives as the Charter was created and then developed.  Canada was a country where the judiciary would frequently refuse to make judgements it deemed to be within the jurisdiction of Parliament.   But the development of  Charter jurisprudence changed all of that.  Now legislative decisions are tested against the provisions of the Charter routinely. The Courts analysis is not yet political - we have not gone down the road of the politicization of the Court, like our friends to our South.  Not yet anyway. I doubt many Canadians now would accept that their rights are only political.  A cultural norm has developed that our rights are in fact protected by the Charter and the oversight function the court has on governmental actions and legislation.  Just as the American system is designed to do. 

Your assertion that all rights are merely political is a tip of the hat to the unhinged right and makes our Charter and the American constitution meaningless.  They are fundamentally designed to protect against the tyranny of the majority, not merely puppet it.

The SCC isn't as overtly political as the USSC.  But that doesn't mean it's not an intensely political body.

[Berkut]

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.

But Beeb has already stated that he thinks those kinds of laws are fine, if regrettable. He believes that the only personal liberty that exists is whatever the State decides you have, and no more.

And here we go.

You can fuck right off Berkut.

Cuss out yourself, it's your stance, not mine.

[grumbler]

The right to privacy I would concede has always been a core right, but what that right covers was not fixed with some universal truth in the 18th century. There is no reading of the right to privacy's history that would suggest any meaningful belief that it protected the right to procure an abortion for the first 190 odd years of American history. Are you suggesting that way back in the mid-18th century when the English common law right to privacy was first fleshed out in an English court, it innately covered a right to procure an abortion? And we just "realized this" some 200 years later? I think not.

I think the reality is the broad right to privacy, in the specific, is a matter of subjective opinion, and the court ruled based on subjective opinions based on mid-20th century mores in Roe. I think such decision should primarily be left to legislatures.

Do you believe that the state can mandate abortions if it chooses to do so?

[The Minsky Moment]

The right to privacy I would concede has always been a core right, but what that right covers was not fixed with some universal truth in the 18th century. There is no reading of the right to privacy's history that would suggest any meaningful belief that it protected the right to procure an abortion for the first 190 odd years of American history. Are you suggesting that way back in the mid-18th century when the English common law right to privacy was first fleshed out in an English court, it innately covered a right to procure an abortion? And we just "realized this" some 200 years later? I think not.

This is exactly the point I addressed earlier.  Why on earth should the meaning and understanding of the constitution be limited to the admittedly restricted worldview of the late 18th century gentlemen patricians that drafted it?  It's like the ultra-orthodox in Brooklyn that still dress like they are living in 18th century Poland because that's what the revered Grand Rebbe So-and-so did.  It does no disrespect to the framers to adopt the principles they propounded to a time in human history where women and people of other races are regarded as full and equal human beings.