Texas vs Roe vs Wade

[Sheilbh]

I totally agree on that.

Where my legal training in my area/jurisdiction does come give me bias is that I totally get textualism/literalism as an approach. But originalism and all the stuff around that seems like historical fiction rather than a legal philosophy

[The Minsky Moment]

Pure textualism cannot work for the US constitution because it was written to reflect principles not specific cases.

Does the US constitution prohibit the government from tapping everyone's phone and taping all conversations?  The purely textual answer is straightforward - nothing in the text of the Constitution prohibits it.  The only way to reach a different answer is to depart from text, to posit some principle that underlies the Bill of Right - namely, a right to privacy - and then argue by analogy using that principle.

Once you've departed from pure literalism the next question is what interpretive framework to apply.  It strikes me as absurd and missing the point to address the question by trying to imagine what Madison and Jefferson would have thought about telephones. Rather the question is how to apply the principle behind the text - the principle of personal privacy - based on the way people in the present use telephones in their lives.

[Sheilbh]

I get that it's probably more statutory than constitutional interpretation - and textualism is only one tool. If there isn't a clear answer in the text (or it produces an absurd result) then obviously you need another interprative tool. But it's one that I think is valid and coherent in a way that I just don't think originalism is.

As you say it's right to move outside the text once it's unclear there are various other tools - analogy, other courts, precedent, structure, purpose and mischief. I find all of those more persuasive than originalism, exactly for the same reasons as you say.

As an example - again statutory - from what I read of it when it came out and people were talking about, I totally agreed with Gorsuch's analysis/approach on the LGBT discrimination which seemed to me (as a lawyer in the UK) as a very sensible decision and approach.

[Berkut]

My problem is with the approach of "Well, I am an originalist when it comes to topic A, but obviously I am a textualist when it comes to topic B!"

You see right now, in this very thread. People tie themselves into intellectual knots. Then they start cussing at you when you point out the knot they've tied themselves into!

You can't say that it's Constitutional to lets states ban abortion because the Constitution says nothing about abortion, but then get pissed off when someone extrapolates that to its logical conclusion to note that you therefore must think it would be ok for the State to *mandate* abortions, since the Constitution is just as quiet on the mandating as it is on the banning.

Of course that is an absurd position.

My problem with textualism (beyond it's functional absurdity in a practical manner) is that it seems to be that even those who propound it don't actually believe it. It is just a tactical tool to be deployed when it supports their particular argument, and then ignored when it does not.

[crazy canuck]

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.

I am not sure what you mean by "intensely political".  The Parliament created the Charter and gave it to the judiciary to interpret.  I challenge you to predict how a justice of the supreme court will decide a matter based on who appointed them.

[Berkut]

https://twitter.com/numbersmuncher/status/1453399306942226447?s=21&fbclid=IwAR0Z9HqYNe95PHFRBUpNxWf82kfJo9B34vEvWJzo1Y8AAnTmG4Py369a-Ig

Apparently stealing the Supreme Court wasn't enough.

"When do we get to use the guns?"


This is reaping what was sown. You can't spend 40 years dismantling representative democracy to justify packing the SC to get Roe v Wade overturned, but somehow magically limit the damage you have to do to get there to ONLY that topic.

[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.

I am not sure what you mean by "intensely political".  The Parliament created the Charter and gave it to the judiciary to interpret.  I challenge you to predict how a justice of the supreme court will decide a matter based on who appointed them.

I've heard speeches by three SCC Justices.

First Justice L'heureux-Dube back when I was in law school, then Justice Rothstein (I forget the context where), and finally Justice Moldaver (then of the ONCA, later appointed) when I attended an Ontario Crown School.  Rothstein and Moldaver were more similar, both being Harper appointments, but both displayed a very specific legal philosophy.  And L'heureux-Dube may have been a Mulroney appointment but definitely displayed a very distinct style all her own.

Don't necessarily confuse "political" with being partisan political.  The Justices all have their own specific philosophies and view points and are hardly some judicial blank slate when they hear cases.

[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.

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.

I'm not a strict textualist / originalist by any means, and to some degree I think those are unhelpful terms. Long before they became buzzwords in judicial political circles, and you can just pull up almost any consequential Supreme Court decision in history, judges have analyzed the text of the law or constitutional passage under dispute, and they have looked at historical precedent, intentions behind the writing of the laws etc. Whatever the problems with Scalia-style originalism and textualism, the idea that a basis for making the very analogies you say judges ought be making has always been analyzing things like common law precedents and history.

I have zero issue with the finding that there is a right to privacy that is not explicitly stated in the constitution, the constitution clearly was never intended to be the master list of enumerated rights, it even says as much. You can find clear evidence for a right to privacy back as far as mid-18th century English common law, and it was clearly respected if not in explicit name, by subsequent American courts regularly. But as you state, you have to look at things on a case by case basis and create some structured analogue for deciding what exactly is covered by a right to privacy and what is not.

I have no real issue that you can believe that there is a compelling right to privacy, but that it doesn't cover abortion. Nothing about believing in a right to privacy speaks to believing it is universal, and that there are not categories that society has decided are not afforded the right. For example the common law right to privacy did not protect against having soldiers quartered in private homes, as military needs of the State were understood to be more important than the right to privacy. The founders took great enough issue with that, that they explicitly prohibited peacetime quartering in the constitution, and stipulated that war time quartering is only permitted if explicitly laid out in law. I think given that for several hundred years people that clearly accepted a right to privacy, but did not accept that that right extended to the right to abort a pregnancy, suggests there is no real common law precedent for abortion being covered by the right to privacy.

That isn't enough alone to say a court's ruling is wrong, but I do think it gets into waters where the courts have to be careful.

People keep asking, and I believe I've already answered, about mandatory abortion. I don't believe the State should be able to mandate abortion, but not because of a right to privacy. I would argue that there is firm evidence of a right to procreation, even if it has not been regularly litigated in the United States (partly because for most of our history the State if anything has generally acted to encourage procreation as it was seen as a common good.)

[grumbler]

People keep asking, and I believe I've already answered, about mandatory abortion. I don't believe the State should be able to mandate abortion, but not because of a right to privacy. I would argue that there is firm evidence of a right to procreation, even if it has not been regularly litigated in the United States (partly because for most of our history the State if anything has generally acted to encourage procreation as it was seen as a common good.)

Do you consider a right invented by message board posters to be more, or less, compelling that one that you believe a "court created... out of thin air that day" (particularly when you've been repeatedly proven wrong on what the decision in Roe v Wade actually said)?

[Admiral Yi]

Joan, I would be interested to what limits, if any, you think should constrain SC interpretations of the Constitution?  If not the literal text, what limits them?

[The Minsky Moment]

Otto - I don't agree with the focus on the 18th century British common law.  To begin with, the very concept of the British common law lacks coherence and clear definition. For example one must separate well-known books and treatises *about* the common law, such as Blackstone, from the common law itself.   The common law itself is just the set of customary understandings and practice, as applied in various ad hoc legal dispositions in different times or places.  The treatises are logically ordered to supply an intellectual scaffolding and a coherence that wasn't already there.  It's an error to take the intellectual theorization about the common law as being equivalent to the common law itself.

For example, think about one of the most famous common law rulings of the 18th century - that of Judge Mansfield in Somerset's case where he declared slavery to be repugnant to the common law of England - what was the basis of that decision?  The reality was Englishmen had been trading in slaves for centuries.  We know that slaves were kept in bondage in the British Isles by their English and Scottish masters during the early 1700s and that claims over human slave property were sufficiently accepted for masters to feel comfortable placing newspaper ads seeking their return: see https://www.runaways.gla.ac.uk/introduction.  So is it really accurate to say that slavery was repugnant to the common law in the sense of the common unwritten understanding of what the law permitted or forbade?  Or is it more accurate to say that Mansfield used his power, position and prestige to establish a legal principle that he justifiably felt *should* govern?

Although it is true that most states accepted the English common law upon independence and that Blackstone enjoyed even more prestige in American than in England, the common law has long since lost since lost much of its significance in American law.  The rights, powers, and limitations of the government as against the citizenry are defined in written constitutions and the criminal law in every state has long since been codified (and common law crimes eliminated).  The common law retains a twilight existence in the nooks and crannies of civil and commercial law that have not been replaced or superseded by statute.

This is a long-winded way of saying that in interpreting the scope of the constitutional right of privacy, I don't think it is particularly relevant to consider what Blackstone or Coke had to say about abortion or "quickening" or what people in England or Wales thought about the matter in the 1760s. 

[crazy canuck]

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.

I am not sure what you mean by "intensely political".  The Parliament created the Charter and gave it to the judiciary to interpret.  I challenge you to predict how a justice of the supreme court will decide a matter based on who appointed them.

I've heard speeches by three SCC Justices.

First Justice L'heureux-Dube back when I was in law school, then Justice Rothstein (I forget the context where), and finally Justice Moldaver (then of the ONCA, later appointed) when I attended an Ontario Crown School.  Rothstein and Moldaver were more similar, both being Harper appointments, but both displayed a very specific legal philosophy.  And L'heureux-Dube may have been a Mulroney appointment but definitely displayed a very distinct style all her own.

Don't necessarily confuse "political" with being partisan political.  The Justices all have their own specific philosophies and view points and are hardly some judicial blank slate when they hear cases.

I didn't claim they are judicial blank slates.  They have a whole body of writing and decisions before they get appointed.  I simply contest your position that they are "intensely political".

[OttoVonBismarck]

People keep asking, and I believe I've already answered, about mandatory abortion. I don't believe the State should be able to mandate abortion, but not because of a right to privacy. I would argue that there is firm evidence of a right to procreation, even if it has not been regularly litigated in the United States (partly because for most of our history the State if anything has generally acted to encourage procreation as it was seen as a common good.)

Do you consider a right invented by message board posters to be more, or less, compelling that one that you believe a "court created... out of thin air that day" (particularly when you've been repeatedly proven wrong on what the decision in Roe v Wade actually said)?

I don't agree that such a right was created by message board posters. Since you yourself have been wrong in virtually everything you've posted in this thread, your interpretation of my rightness or wrongness isn't particularly persuasive either.

[OttoVonBismarck]

Otto - I don't agree with the focus on the 18th century British common law.  To begin with, the very concept of the British common law lacks coherence and clear definition. For example one must separate well-known books and treatises *about* the common law, such as Blackstone, from the common law itself.   The common law itself is just the set of customary understandings and practice, as applied in various ad hoc legal dispositions in different times or places.  The treatises are logically ordered to supply an intellectual scaffolding and a coherence that wasn't already there.  It's an error to take the intellectual theorization about the common law as being equivalent to the common law itself.

For example, think about one of the most famous common law rulings of the 18th century - that of Judge Mansfield in Somerset's case where he declared slavery to be repugnant to the common law of England - what was the basis of that decision?  The reality was Englishmen had been trading in slaves for centuries.  We know that slaves were kept in bondage in the British Isles by their English and Scottish masters during the early 1700s and that claims over human slave property were sufficiently accepted for masters to feel comfortable placing newspaper ads seeking their return: see https://www.runaways.gla.ac.uk/introduction.  So is it really accurate to say that slavery was repugnant to the common law in the sense of the common unwritten understanding of what the law permitted or forbade?  Or is it more accurate to say that Mansfield used his power, position and prestige to establish a legal principle that he justifiably felt *should* govern?

Although it is true that most states accepted the English common law upon independence and that Blackstone enjoyed even more prestige in American than in England, the common law has long since lost since lost much of its significance in American law.  The rights, powers, and limitations of the government as against the citizenry are defined in written constitutions and the criminal law in every state has long since been codified (and common law crimes eliminated).  The common law retains a twilight existence in the nooks and crannies of civil and commercial law that have not been replaced or superseded by statute.

This is a long-winded way of saying that in interpreting the scope of the constitutional right of privacy, I don't think it is particularly relevant to consider what Blackstone or Coke had to say about abortion or "quickening" or what people in England or Wales thought about the matter in the 1760s.

I'm not the one who cited English common law in my decision as a Supreme Court justice as part of my explanation for the right to privacy. William O. Douglas is no longer alive but he's the one you would have to take issue with, not me.

[The Minsky Moment]

Joan, I would be interested to what limits, if any, you think should constrain SC interpretations of the Constitution?  If not the literal text, what limits them?

The text does matter.  For example, Art 2 Section 1 of the US Constitution begins "The executive Power shall be vested in a President of the United States of America."  You cannot argue that the executive power of the US is held by the governor of Idaho, or the Manhattan District Attorney, or the Regional Vice President - EMEA of Ford Motor Company, no matter how urgently those individuals would like to exercise that power.

But what exactly is entailed by "the executive power"?  The text is not so helpful here. Take a concrete example of some interest now: to what extent does "the executive power" entail the right of the President to receive confidential advice from his cabinet members and advisors, and how far does that right of confidentiality extend?   Again, the constitutional text does little to help us answer the question.  And there are many interpretive problems of this nature in constitutional law.

Million of pages of print have been dedicated to the jurisprudential problem of constraints on raw judicial discretion in interpreting and applying law.  In the middle of the 20th century, one school of jurisprudence - the Realists - declared the problem inherently unsolvable.  Judges were human beings and thus political animals, and any system of jurisprudence was just intellectual window dressing to disguise political preference.  Any interpretive principle or canon could be bent or manipulated to generate a desired end result. 

The realist critique is and remains powerful and I don't think a fully satisfactory response has ever been developed.  Judges do engage in results oriented reasoning and do manipulate interpretive canons.  But although some find the realist answer bracing for many others it is deeply unsettling and unsatisfactory, because the idea that lawyers in robes can effectively rewrite and reinterpret the laws at will seems corrosive of democratic principle.  If that is really the way the law works, doesn't it reinforce the Donald Trump-like view that justice is just personality?

In fact there is one meaningful constraint on judicial action - namely, the constraint of explanation.  Judges express their rulings in written opinions and thus must explain what they do and why they are doing it.  And the social pressure of the expectations of democratic society means that most judges feel that cannot justify their rulings by openly stating raw political preference.  Those pressures lead judges to announce public adherence to interpretive frameworks that are or appear to be (or can be argued to appear to be) facially neutral.  And that in turn creates social pressure to stick to those frameworks rather than face accusations of hypocrisy.

The constraint of explanation may not be hard as iron but it is real.  One can see it in the career of someone like Chief Judge Roberts, a straight down the line political conservative, but one constantly torn between his personal outcome preferences in individual cases and his desire to preserve the legitimacy of the judiciary as a national institution.  Mr. John Roberts would never have voted for ACA, but Justice Roberts has voted to save it, because of those broader institutional concerns.