Languish.org

So apparently Texas is going explicitly after Roe v. Wade

QuoteAnd Now the Cat Is Out of the Bag on the Texas Abortion Case
They just said it out loud!

It is no secret that the conservative movement in this country has been gunning for Roe v. Wade ever since it was decided. (If there's ever been anything covert about the effort, it's the fact that the real target all along has been Griswold v. Connecticut, and the entire notion of a constitutional right to privacy.) But, for decades, the assaults have been oblique, aiming to whittle away Roe as a functional precedent without ever directly overturning it. This was very satisfactory, because even the most fanatical anti-choice politicians realized that overturning Roe and criminalizing abortion would result in a gender gap the size of the Dardanelles.

Steadily, though, and emboldened by the conservative capture of the federal courts, up to and including the current engineered 6-3 majority on the Supreme Court, this reluctance has melted away. The Dobbs case, soon to be argued in Washington, is a direct appeal to overturn Roe, and it appears that Texas may be trying to beat Mississippi to the punch. On Thursday, Texas filed its answer to the administration's request that the Supreme Court block the draconian new Texas anti-choice law. In that answer, toward the end, the kitty comes screeching from the burlap.

The federal government criticized Texas for not "forthrightly . . . asking this Court to revisit its decisions." Texas has done so now.

Despite the Court's hope that its decision in Casey would "call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," abortion remains a divisive issue. There will always be those who deem abortion "nothing short of an act of violence against innocent human life." Consequently, there will always be States who seek to protect unborn life through their laws, and there will be those who seek to challenge such laws, unless and until this Court returns the question of abortion to where it belongs—the States.

If the Court decides to construe the federal government's application as a cert petition, it may also construe this response as a conditional cross-petition on the question whether the Constitution recognizes and protects a right to abortion and whether the Court should reconsider its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

And there it is.

Texas is saying that if the Court takes up the administration's case against a Texas law that essentially repeals Roe in practice, it may consider Texas's response to be a request that the Court repeal its previous decisions on the subject outright. They don't care about the gender gap anymore. They don't really see politics that way anymore. Qui audet adipiscitur, goes the saying.

Who dares, wins.

https://www.esquire.com/news-politics/politics/a38026835/texas-abortion-case-roe-v-wade-casey-planned-parenthood/

What's the gender gap in this context?

Quote from: Grey Fox on October 22, 2021, 06:50:45 PM
What's the gender gap in this context?

I think they're talking about the risk of driving away female voters?

Its going to work.

The religious fanatics on the right have sacrificed everything to get here, and get their ultra partisan hacks onto the Supreme Court. They've thrown out principle, democracy, the rule of law, caring about the truth or a free press. It has all been sacrificed on this alter that has gotten them 6 carefully groomed ultra radical "conservatives" in place.

This is what the so called "reasonable" conservatives have been working for. This is why Trump was ok, Cruz was ok, De Santis is to be tolerated, Rush was fine, Tucker Carlson is a necessary evil. This is why destroying the concept of the objective press was worth it.

And it is going to work. Within a short period of time Roe v Wade will be gone, and a significant number of US states will have criminalized a woman's right to make decisions about her own body and health care.

And there will be much loud rejoicing, and a lot more very quiet rejoicing that for the moment, the power of men to control women will have been restored.

It's even worse than that.  If Roe is overturned, it is because the court refuses to recognize that the state has no right to intrude on a woman's right to privacy without a compelling interest.  That means that Griswold will be the next target, and the power of the one-party states to invade privacy will be absolute.

Either government surveillance and intrusion power over citizens is unlimited, or Roe was correctly decided.

I wonder if the supposedly "sane" GOP members watching Roe v Wade get taken apart by a radical minority court are thinking "It was worth it!".

To get here, they had to help engineer the destruction of representative democracy in America. The rise of the Tea Party. The war against science, reason, and truth.

They fomented racism within their own ranks, encouraged intolerance and hate, tolerated bigotry and no-nothingism, and the rise of conspiracy as a replacement for knowledge.

They watched the GOP turn into this...thing. A party of anger and hate and a contempt for democracy.

They watched in faux horror as Trump took over the party they had created. They pretended outrage on Jan 6th, and then immediately shut up or even started defending the actions of those who literally attacked the center of American democracy.

But now here it is - here is the payoff. They are getting what they worked for decades for - the minority imposition of their religious views on the majority, and the repudiation of a fundamental woman's right to her own sovereignty over her own health and body.

Victory is at hand. I wonder if they think it was worth it?

Of course republicans think it is worth it.  It gets them elected, and that's all they care about.  "Principled Republican" is an oxymoron since the death of John McCain.

Once they've gotten Roe overturned, what will be their next target? :hmm:

Quote from: Caliga on October 22, 2021, 10:08:29 PM
Once they've gotten Roe overturned, what will be their next target? :hmm:

Griswold (birth control)

The vacation movies were pretty bad.

Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

I suspect though that the GOP is going to be like the dog that caught the care once it is overturned - actually banning abortion will be quite a bit less popular than they think it will be...

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

I suspect though that the GOP is going to be like the dog that caught the care once it is overturned - actually banning abortion will be quite a bit less popular than they think it will be...

I tend to agree, and if I thought that the GOP were going after Roe on a sound intellectual basis with an aim of replacing it with something better, I might even be in favor of overturning it.

But we know they aren't, and we know what they are really up to, and so they can go fuck themselves and keep coming across as monsters.

Quote from: Caliga on October 22, 2021, 10:08:29 PM
Once they've gotten Roe overturned, what will be their next target? :hmm:

Affirmative action in university admissions
ACA and more generally the federal commerce power
Gay marriage
Expanding the ability to invoke "religious freedom" as a basis for evading laws and regulations of general applicability

Quote from: crazy canuck on October 25, 2021, 02:18:24 PM
The vacation movies were pretty bad.

Oh hell to the no. I mean, it's not Fletch, but isn't there like German boobies? Or did I dream them.

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Well, there is my answer I guess.

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Do you think they should?

In related news, Oklahoma woman sentenced to four years in prison for having a miscarriage: https://www.usatoday.com/story/news/nation/2021/10/21/oklahoma-woman-convicted-of-manslaughter-miscarriage/6104281001/

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Surely the next step for these people (on this issue) is making abortion unconstitutional (through SCOTUS) and NOT up to individual states.

Quote from: Berkut on October 25, 2021, 02:59:24 PM

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Do you think they should?

I have long adopted the Bill Clinton abortion formulation - that abortion should be safe, legal and rare.

Quote from: Barrister on October 25, 2021, 03:09:51 PM

Quote from: Berkut on October 25, 2021, 02:59:24 PM

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Do you think they should?

I have long adopted the Bill Clinton abortion formulation - that abortion should be safe, legal and rare.

Fair enough.

It is odd that you argue that it should be legal, but that it is Constitutional to deny someone the right to make that decision.

Are there any other medical procedures you think people should only be allowed if their particular state thinks they ought to be allowed?

Quote from: The Brain on October 25, 2021, 03:07:44 PM

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Surely the next step for these people (on this issue) is making abortion unconstitutional (through SCOTUS) and NOT up to individual states.

Trivially easy to accomplish with this Court.

If you look at Texas and say "Yep, that is fine! Having private citizens enforce "law" as a means of skirting a specific Constitutionally recognized right of an individual!" then you can claim the Constitution says anything you like.

Abortion is murder, hence the basic COnstitutional protection of "life" easily covers that.

Quote from: Berkut on October 25, 2021, 03:32:57 PM

Quote from: Barrister on October 25, 2021, 03:09:51 PM

Quote from: Berkut on October 25, 2021, 02:59:24 PM

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Do you think they should?

I have long adopted the Bill Clinton abortion formulation - that abortion should be safe, legal and rare.

Fair enough.

It is odd that you argue that it should be legal, but that it is Constitutional to deny someone the right to make that decision.

Are there any other medical procedures you think people should only be allowed if their particular state thinks they ought to be allowed?

The state frequently regulates what kinds of medical behaviours can and can not be used.  Typically that's to prevent quackery, but procedures like euthanasia is also often forbidden.

Yeah I think I basically agree with Barrister here - but in the context of the US with this Supreme Court and politics as they are, absolutely not.

Quote from: Barrister on October 25, 2021, 03:38:40 PM

Quote from: Berkut on October 25, 2021, 03:32:57 PM

Quote from: Barrister on October 25, 2021, 03:09:51 PM

Quote from: Berkut on October 25, 2021, 02:59:24 PM

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Do you think they should?

I have long adopted the Bill Clinton abortion formulation - that abortion should be safe, legal and rare.

Fair enough.

It is odd that you argue that it should be legal, but that it is Constitutional to deny someone the right to make that decision.

Are there any other medical procedures you think people should only be allowed if their particular state thinks they ought to be allowed?

The state frequently regulates what kinds of medical behaviours can and can not be used.  Typically that's to prevent quackery, but procedures like euthanasia is also often forbidden.

That is not w

Quote from: Barrister on October 25, 2021, 03:38:40 PM

Quote from: Berkut on October 25, 2021, 03:32:57 PM

Quote from: Barrister on October 25, 2021, 03:09:51 PM

Quote from: Berkut on October 25, 2021, 02:59:24 PM

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

Do you think they should?

I have long adopted the Bill Clinton abortion formulation - that abortion should be safe, legal and rare.

Fair enough.

It is odd that you argue that it should be legal, but that it is Constitutional to deny someone the right to make that decision.

Are there any other medical procedures you think people should only be allowed if their particular state thinks they ought to be allowed?

The state frequently regulates what kinds of medical behaviours can and can not be used.  Typically that's to prevent quackery, but procedures like euthanasia is also often forbidden.

So abortion and euthanasia?

I was thinking more of an apples and apples comparison. Medical procedures that are not quackery or specifically designed to end the life of the person getting the procedure.

Abortion is designed to end the life of the fetus.

Yes, we are aware of that.

Are there any other medical procedures that you feel that states ought not to ban, but you think they have the power to ban for women? Procedures that are not quackery or designed to end the life of the person getting the procedure?

Maybe there is abetter way of asking this question.

Do you think there is a general right of people to have final say it what choices they make for their health, or does the same principle that (in your opinion) says that the State ought to have the power to decide if women can have an abortion apply to any other medical procedure?

Would it be constitutionally ok for the state to tell women they cannot get a hysterectomy, for example?

Note that I am not asking you if you think the state SHOULD do such a thing, I am asking of it is within the power of the state to do such a thing, regardless of whether they ought to...

Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

Just for the record here, Beeb, your take in this thread cements why I would never trust the Conservative Party of Canada on abortion, conversion therapy, medical rights, or women's rights.

Quote from: Barrister on October 25, 2021, 04:13:27 PM
Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

So you do think the State has the Constitutional right to decide what medical procedures people should be allowed to get in general, and abortion is not "special". They could, constitutionally, say that women are not allowed to be on birth control anymore, for example?

Quote from: Barrister on October 25, 2021, 04:13:27 PM
Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

Conversion therapy is not a medical procedure, it's pseudoscience, quackery, and a scam.

Quote from: Berkut on October 25, 2021, 04:22:34 PM

Quote from: Barrister on October 25, 2021, 04:13:27 PM
Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

So you do think the State has the Constitutional right to decide what medical procedures people should be allowed to get in general, and abortion is not "special". They could, constitutionally, say that women are not allowed to be on birth control anymore, for example?

Sure.  The government has long regulated medicine.  It's not as if hormonal birth control is without risks either.

I think Roe was a bad ruling and would be very happy to see it overturned and replaced with identical legislation, but I'm not sure under what Constitutional power of Congress they would enact it.

Quote from: Barrister on October 25, 2021, 04:32:16 PM
Sure.  The government has long regulated medicine.  It's not as if hormonal birth control is without risks either.

Yeah and - from my admittedly very different perspective than the US - I wouldn't really see the constituion as the place to put medical procedures.

Quote from: Sheilbh on October 25, 2021, 04:39:05 PM

Quote from: Barrister on October 25, 2021, 04:32:16 PM
Sure.  The government has long regulated medicine.  It's not as if hormonal birth control is without risks either.

Yeah and - from my admittedly very different perspective than the US - I wouldn't really see the constituion as the place to put medical procedures.

The constitution is NOT the place for medical procedures.

It IS the place for basic rights around personal liberty and the right to make decisions about your own health.

Beebs is consistent in his disdain for personal liberty in the face of the state deciding what is best for individuals, I will give him that.

Quote from: Barrister on October 25, 2021, 04:32:16 PM

Quote from: Berkut on October 25, 2021, 04:22:34 PM

Quote from: Barrister on October 25, 2021, 04:13:27 PM
Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

So you do think the State has the Constitutional right to decide what medical procedures people should be allowed to get in general, and abortion is not "special". They could, constitutionally, say that women are not allowed to be on birth control anymore, for example?

Sure.  The government has long regulated medicine. 

Of course.

We are not talking about regulating medicine though, we are talking about the State having the power to deny people the right to make their own choices around medical procedures.

You clearly feel that power is unfettered, and only constrained by what is palatable to whomever holds the power to pass laws at the moment (I was going to say to whomever the majority elects, but we know this has nothing to do with what the majority wants, of course).

QuoteIt's not as if hormonal birth control is without risks either.

Not talking about risks, nor did anyone say anything about hormonal birth control. You keeping adding in these extraneous pieces - why is that?

Your argument has to live on the constitutionality of the state having the power to regulate personal choices in health care, absent compelling need. It is not about "risks". A condom has no appreciable risks, and yet you feel the state could, if it wanted, deny people the right to use a condom. Hormonal birth control has risks, but they are minor and easily managed under almost all circumstances, but you are not arguing that the state has the right to regulate their use to minimize risk, you are arguing that it is has the power to simply deny a women the right to control her own productivity even absent ANY risk doing so....right?

This is pretty well-settled law Berkut.

Governments banned marijuana for years and years.  There were lawsuits arguing much as you have said - that people should have the right to use marijuana if they want to.  The courts disagreed and held it was within the governments power to ban marijuana.

Then a number of jurisdictions reversed themselves and made marijuana legal.  That too was within their power to do so.

Quote from: Barrister on October 25, 2021, 05:04:42 PM
This is pretty well-settled law Berkut.

Governments banned marijuana for years and years.  There were lawsuits arguing much as you have said - that people should have the right to use marijuana if they want to.  The courts disagreed and held it was within the governments power to ban marijuana.

Then a number of jurisdictions reversed themselves and made marijuana legal.  That too was within their power to do so.

The courts decided that the state could restrict the use of marijuana because it was a recreational drug, not because it was a medical procedure.

I don't think the idea that the state can tell women they are not allowed to use birth control is settled law at all. Indeed, I am quite certain it is settled, if at all, in exactly the opposite manner.

We now have  a SC who doesn't much care about settled law or individual liberty of women, so we can see just how un-settled settled law will become.

But like I said, you are, if nothing else, consistent in your views about personal liberty. Or the lack thereof.

Quote from: Jacob on October 25, 2021, 03:02:36 PM
In related news, Oklahoma woman sentenced to four years in prison for having a miscarriage: https://www.usatoday.com/story/news/nation/2021/10/21/oklahoma-woman-convicted-of-manslaughter-miscarriage/6104281001/ (https://www.usatoday.com/story/news/nation/2021/10/21/oklahoma-woman-convicted-of-manslaughter-miscarriage/6104281001/)

That's scary.

Quote from: Berkut on October 25, 2021, 05:09:00 PM
The courts decided that the state could restrict the use of marijuana because it was a recreational drug, not because it was a medical procedure.

I don't think the idea that the state can tell women they are not allowed to use birth control is settled law at all. Indeed, I am quite certain it is settled, if at all, in exactly the opposite manner.

We now have  a SC who doesn't much care about settled law or individual liberty of women, so we can see just how un-settled settled law will become.

But like I said, you are, if nothing else, consistent in your views about personal liberty. Or the lack thereof.

But the state clearly has the power - it's just in this situation it's practically via the Supreme Court. And I think that is one of the key issues of a "rights based"/legalist approach, that you end up politicising the judicial system and then you just need to keep control of/win the court.

The state has the power - it's just like an air bed the current situation has squeezed out the politics from the legislature(s) to the court.

And my guess given that two thirds of Americans support abortion is that if the court rules this way it will be a disaster for Republicans, because they'll get what they want and it doesn't have widespread enough support.

Edit: And a big issue in American politics, in my view, is that one side has appreciated that politics happens in the Supreme Court and the other likes to belive it's about law and rights and principles and unicorns.

Quote from: Barrister on October 25, 2021, 02:57:14 PM

Quote from: The Minsky Moment on October 25, 2021, 02:44:47 PM

Quote from: Barrister on October 25, 2021, 02:32:04 PM
Roe v Wade was a bad decision that deserves to be overturned.  Come fight me.

Roe v Wade was a not-atypical mess of a decision with three concurring opinions and a decision-by-committee style opinion of the Court.  It may appear to be a bad decision, except for all the alternatives.

The notion that the word "abortion" appears nowhere within the Constitution, and it should be within the power of the states to regulate abortion as they see fit, seems like an entirely defensible alternative.

As I said though - just because the states can do a thing like ban abortion doesn't mean they should...

The word machinegun does not appear in the Constitution.  Does that mean that the Federal government does not have the power to regulate possession of machine guns?  Radio?  Electromagnetic spectrum?  Highway?  I could list dozens of common words not in the Constitution, but over which the US Federal government should and does exercise jurisdiction.

The word "abortion" does not appear in any state constitution in the US.  If the lack of such a word means a constitution gives no power over the named thing, then no state can regulate abortion, either.

The notion that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people is actually explicitly stated in the US Constitution, so arguments that lack of enumeration means lack of rights is absolutely trivial to disprove.

We can talk about the Constiitution until we are bllue in the face.

I am just always kind of stunned that there are people who don't appear to be religious fanatics, who will make the argument that the state has the power to deny women the right to use contraception. As an example.

I have friends who watch crap like the Handmaids Tale and think that is where the GOP is going, and I've always thought that was kind of ridiculous. But here we have people arguing, essentially, that while they think it would be a shame if the State were to do that, gee golly, well, it does have the *power* to do that. After all...it doesn't say anywhere in the Constitution that the state *doesn't* have the power to force women to have sex with men in order to bear them children!

What exactly is the point then of the Supreme Court?

Before Beeb starts swearing at me again, I am not saying I think he is secretly hoping to force women to bear children for men or anything ridiculous like that.

I *do* absolutely think that there are people out there who will always take things as far as they can get away with, so positions of otherwise "moderate" people that essentially ignore Constitutional protections against the will of some people to ignore the rights of others will be used for far more extreme and dangerous purposes then they think.

This goes back to my objections to people chanting the MSM is liberal biased crap - sure, THEY may not mean that the MSM is fake news, but that narrative will and has been to create a story that is *precisely* that. That IS in fact what is meant when that is chanted by all the fucking tools who have used that to dismantle democracy, sabotage any effort to combat climate change, and now call into question vaccines and measures against dealing with the pandemic.

If we accept this argument, that the State does in fact have the absolute power to restrict anyone's personal rights to control their own health care on any basis desired (and again, I understand the argument is not that the State ought to do this, but simply that they can if they wish it), then in fact we will most certainly see places where it is used for absolute evil, like denying women the right to use birth control, as an example. And that same process that has seen the modern GOP destroy majority rule (all the while chanting about how the media is lying to everyone about this) will mean that it will be  in some cases a *minority* of the electorate who gets to decide what is best for the majority and their privacy, their health care, their control over their own personal being.

This is all of a piece. These things are happening now, and they are not separate issues.

Quote from: grumbler on October 25, 2021, 06:51:39 PM
The word machinegun does not appear in the Constitution.  Does that mean that the Federal government does not have the power to regulate possession of machine guns?  Radio?  Electromagnetic spectrum?  Highway?  I could list dozens of common words  . . .

Thanks for saving me the trouble of writing the response

US has a "short" constitution - it sets forth structure and basic principles not detail.

To crib the West Wing (episode where the Martin Sheen President is interviewing a popular candidate for a Supreme Court nomination, one he ultimately opts against) "Do I think a state could ban adding cream to coffee?" "Yes, I do. As someone who enjoys cream in coffee, I believe that would be unwise, but there is nothing in the constitution that forbids the State banning cream in coffee."

I don't see a lot of evidence there is a Federal constitutional principle that should say States are prohibited from regulating medical procedures. In fact, aside from abortion which has been very specifically carved out as a medical procedure the state can regulate only under certain conditions, I believe the States currently regulate all other medical procedures based on the laws passed in those states, and the operations of Boards of Medicine etc in those states.

There is a right listed in the French Declaration of the Rights of Man and of the Citizen that reads:

Quote
Article V – The law has the right to forbid only actions harmful to society. Anything which is not forbidden by the law cannot be impeded, and no one can be constrained to do what it does not order.

That's a great principle, and actually one that I think should inform lawmakers in making laws. I would be in favor of this being enshrined in the Federal constitution. However, it is not.

The Federal Constitution creates a system of divided power, the Federal government has enumerated powers, and the States largely can pass whatever laws they please as long as they don't violate the Federal Constitution.

I have a strong personal opposition to abortion, which I believe is gravely immoral. But like BB I've always felt it should be legal and rare, because of the history of how abortion has operated and the simple practicalities. Banning abortion is a big mess, and it doesn't "solve" the problem.

But despite believing abortion bans are unwise, I do believe that there isn't a clear argument that our Federal Constitution really should prohibit States from passing laws banning abortions.

From a procedural/political perspective, I also think our entire country would be a far better place had Roe never been decided. A few states allowed elective abortions at the time Roe was decided, which is a good indicator Roe was way out ahead of where society was. In the decades after, had Roe not been decided, you'd have steadily seen more states liberalize abortion laws. You would eventually get to the point where, just like Ireland was often the target of bad press and bad stories about its abortion ban, the "hold out" states would be frequently featured in horror stories about women dying needlessly and other things of that nature. I think you'd start to see even conservative states begin to liberalize laws.

Would we have legal abortion on demand in all 50 states today? Probably not, but I think we'd have it in way more states than most people assume, I think 40 years of running side by side systems would actually significantly change many people's opinions on abortion law, even if it didn't change their opinions on abortion's morality.

Instead we got the Roe decision, which I think did exactly what Berkut said it did--it is the main driver of the Republican party becoming hopelessly fascists and insane, with deleterious effects for the whole country.

Now let's be clear, without Roe, I'd view it as a tragedy when stories would occur where some woman was denied a medically necessary abortion in say, Mississippi, and died. But I just don't think this was a problem for the courts to solve, and I think the court solving it created huge societal problems that have rendered our country nearly inoperable.

I think some members of the radical right realized that this was a path to power, and have been riding this, and THAT is what has caused the country to become a mess.

They have had a lot of help from people calling themselves moderates and going along with the crazies.

This was not inevitable once the SC decided that women had the right to make choices about controlling their own bodies, and plenty of other countries have shown that to be true.

Blaming the SC for continuing to promote liberty for the tantrum from a bunch of religious fanatics who hate the idea seems rather an odd take.

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

If you want to take down Roe v Wade, you have to take down Griswold v Connecticut as well. Which of course we've already heard Beebs say was bad law as well, so I guess that is in fact where this is going.

Quote from: Berkut on October 26, 2021, 10:46:56 AM
I think some members of the radical right realized that this was a path to power, and have been riding this, and THAT is what has caused the country to become a mess.

They have had a lot of help from people calling themselves moderates and going along with the crazies.

This was not inevitable once the SC decided that women had the right to make choices about controlling their own bodies, and plenty of other countries have shown that to be true.

Blaming the SC for continuing to promote liberty for the tantrum from a bunch of religious fanatics who hate the idea seems rather an odd take.

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

If you want to take down Roe v Wade, you have to take down Griswold v Connecticut as well. Which of course we've already heard Beebs say was bad law as well, so I guess that is in fact where this is going.

Where you are wrong, and "I do not have it exactly backward", is our constitution doesn't establish that the States are limited by some Federal constitutional principle as to what areas of society they can regulate. The Federal government is restricted, and when Federal and State laws clash in areas in which the Federal government is empowered to make law, Federal law trumps state law. The only real exception to this, is due to a series of post-Civil War Supreme Court cases that have "Incorporated" large parts of the Bill of Rights and a number of other Federally enshrined rights, the States do have limitations around constitutional rights. They are not generally bound by the Federal constitution in their own lawmaking in the manner you have suggested.

The first thing binding them would be their own state constitutions--which in a great many cases, enshrine more constitutional rights than the Federal, and often have more limiters on legislative power, but not always. But barring that, State legislatures are largely allowed to pass whatever laws they want as long as they do not infringe on Federal prerogatives or explicitly violate incorporated Federal constitutional rights.

Quote from: Barrister on October 25, 2021, 04:32:16 PM

Quote from: Berkut on October 25, 2021, 04:22:34 PM

Quote from: Barrister on October 25, 2021, 04:13:27 PM
Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

So you do think the State has the Constitutional right to decide what medical procedures people should be allowed to get in general, and abortion is not "special". They could, constitutionally, say that women are not allowed to be on birth control anymore, for example?

Sure.  The government has long regulated medicine.  It's not as if hormonal birth control is without risks either.

Just returning to this - it is odd how selective you are in your respect for "established law", since it has been in fact established Constitutional law since 1964 that in fact the State does NOT have the right to ban birth control.

Quote from: OttoVonBismarck on October 26, 2021, 10:52:37 AM

Quote from: Berkut on October 26, 2021, 10:46:56 AM
I think some members of the radical right realized that this was a path to power, and have been riding this, and THAT is what has caused the country to become a mess.

They have had a lot of help from people calling themselves moderates and going along with the crazies.

This was not inevitable once the SC decided that women had the right to make choices about controlling their own bodies, and plenty of other countries have shown that to be true.

Blaming the SC for continuing to promote liberty for the tantrum from a bunch of religious fanatics who hate the idea seems rather an odd take.

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

If you want to take down Roe v Wade, you have to take down Griswold v Connecticut as well. Which of course we've already heard Beebs say was bad law as well, so I guess that is in fact where this is going.

Where you are wrong, and "I do not have it exactly backward", is our constitution doesn't establish that the States are limited by some Federal constitutional principle as to what areas of society they can regulate. The Federal government is restricted, and when Federal and State laws clash in areas in which the Federal government is empowered to make law, Federal law trumps state law. The only real exception to this, is due to a series of post-Civil War Supreme Court cases that have "Incorporated" large parts of the Bill of Rights and a number of other Federally enshrined rights, the States do have limitations around constitutional rights. They are not generally bound by the Federal constitution in their own lawmaking in the manner you have suggested.

The first thing binding them would be their own state constitutions--which in a great many cases, enshrine more constitutional rights than the Federal, and often have more limiters on legislative power, but not always. But barring that, State legislatures are largely allowed to pass whatever laws they want as long as they do not infringe on Federal prerogatives or explicitly violate incorporated Federal constitutional rights.

Griswold v Connecticut, 1964. You are wrong.

Quote
As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

Please keep track of what you're posting--Griswold does not remotely establish a principle such as this. Griswold held that there is a right to "marital privacy" that prohibits laws like the Comstock Law in Connecticut that forbade using "any drug, medicinal article or instrument for the purpose of preventing conception." Griswold notes, but didn't really establish that there are fundamental rights that are not explicitly stated in the constitution. I'm not sure if that's what you are extrapolating to mean that there is some sort of U.S. Constitutional provision that prohibits passing any laws that restrict things that aren't harmful to society. Griswold is one of the first extremely clear elucidations of the "right to privacy" and directly lead to Roe, but the right to privacy isn't synonymous with a purported concept that States can only pass laws preventing things "harmful to society." There is no such constitutional principle, and States absolutely can pass a great many laws regulating a great many things that are not specifically harmful to society. States broadly do not have the onus of demonstrating that what they are regulating is harmful to society. I do think there may be a broad constitutional principle that there must be a "compelling public interest" for State intervention, but that's fairly broad.

Also, procedurally in truth "harmful to society" is a squishy concept that could be argued almost any way about almost anything.

Also note that under Griswold, it would have still very likely have been legal to prohibit the manufacture and sale of contraceptives. I'm not sure if any states ever pursued that tack, but laws against contraception were actually quite unpopular in general by the 1960s, so it may have just been politically undesirable to do so, I'm not sure.

Also note the passage in Griswold that maybe comes closest to the very broad claim you are making cites a 1765 British case as having precedential importance: Entick v Carrington (https://en.wikipedia.org/wiki/Entick_v_Carrington), but the effect is much more limited than what you are asserting:

Quote
'The principles laid down in this opinion (by Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1029) affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532.

Griswold, Roe and Eisenstadt were all explicitly based on a holding the the 14th amendment bars the states from intruding on fundamental rights absent compelling state interest.  If that principle is repudiated, the consequences would be very significant, as other cases rely on the same constitutional concept - including Obergefell v Hodges - the gay marriage case, and even Loving v Virginia - the case that invalidated state miscegenation laws.

The cases you are citing agree with me, and disagree with you.

The restriction is not based on "harmful to society" in this case, it is based on violating and individuals right to their own body, possessions, and privacy.

The state can certainly violate that, but they have to show some compelling need to do so. Getting a bunch of people to vote for something is not a compelling need.

And yes, Griswold did not establish that there are rights not expressed in the Constutution, it notes that such rights exist and have always existed, and are in fact explicitly stated as such in the 14th Amendment.

QuoteNo state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's right there.

States most certainly DO have an onus to show that their laws do not violate the 14th Amendment, ie, that they do not abridge the "privileges or immunities of the citizens of the United States....or deprive and person of life, LIBERTY, .....etc. etc."

Quote from: The Minsky Moment on October 26, 2021, 11:28:22 AM
Griswold, Roe and Eisenstadt were all explicitly based on a holding the the 14th amendment bars the states from intruding on fundamental rights absent compelling state interest.  If that principle is repudiated, the consequences would be very significant, as other cases rely on the same constitutional concept - including Obergefell v Hodges - the gay marriage case, and even Loving v Virginia - the case that invalidated state miscegenation laws.

The question of what unenumerated rights are "fundamental" rights, is not one with a black and white definition. Society functioned for many years in which abortion was not considered one of those fundamental rights, same for gay marriage. A jurist can certainly find that abortion or let's be honest here "the oddly limited practice of procuring an abortion from a doctor, due to an inherent right of privacy in medical affairs, except when the fetus reaches a certain point, and also we aren't including other medical procedures like euthanasia or delusion-based voluntary amputations in this category" to not be a fundamental right, but for marriage to still be one.

Quote from: Berkut on October 26, 2021, 11:36:00 AM
The cases you are citing agree with me, and disagree with you.

The restriction is not based on "harmful to society" in this case, it is based on violating and individuals right to their own body, possessions, and privacy.

The state can certainly violate that, but they have to show some compelling need to do so. Getting a bunch of people to vote for something is not a compelling need.

And yes, Griswold did not establish that there are rights not expressed in the Constutution, it notes that such rights exist and have always existed, and are in fact explicitly stated as such in the 14th Amendment.

QuoteNo state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's right there.

States most certainly DO have an onus to show that their laws do not violate the 14th Amendment, ie, that they do not abridge the "privileges or immunities of the citizens of the United States....or deprive and person of life, LIBERTY, .....etc. etc."

"Privileges and immunities of the citizens of the United States" is a category of things that do not include many, many, many things that states regularly prohibit or regulate. You continue to read far more into this than is appropriate.

Quote from: OttoVonBismarck on October 26, 2021, 01:27:06 PM

Quote from: Berkut on October 26, 2021, 11:36:00 AM
The cases you are citing agree with me, and disagree with you.

The restriction is not based on "harmful to society" in this case, it is based on violating and individuals right to their own body, possessions, and privacy.

The state can certainly violate that, but they have to show some compelling need to do so. Getting a bunch of people to vote for something is not a compelling need.

And yes, Griswold did not establish that there are rights not expressed in the Constutution, it notes that such rights exist and have always existed, and are in fact explicitly stated as such in the 14th Amendment.

QuoteNo state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's right there.

States most certainly DO have an onus to show that their laws do not violate the 14th Amendment, ie, that they do not abridge the "privileges or immunities of the citizens of the United States....or deprive and person of life, LIBERTY, .....etc. etc."

"Privileges and immunities of the citizens of the United States" is a category of things that do not include many, many, many things that states regularly prohibit or regulate. You continue to read far more into this than is appropriate.

I understand that you are one of those that does not think a woman has the "privilege" of deciding if she wants to use birth control.

I think if you don't read into what I am reading into it, the phrase means nothing at all.

If it doesn't cover a basic right to decide what medical procedures one has the right to avail oneself of absent some state shown compelling interest, then what DOES it cover that matters at all?

If it doesn't cover that, then how does it in fact cover your right to marry someone of another race?

Also "compelling state interest" is not fixed in stone either, Roe already established there was a compelling state interest in fetal life, it just limited at what point it could intercede on it, you can change the metric without upending all of our constitutional jurisprudence, frankly. In fact the court has done so with a number of post-Roe holdings in some ways.

Roe was a tortured ruling that was ill considered.

Quote from: Berkut on October 26, 2021, 01:29:37 PM
I understand that you are one of those that does not think a woman has the "privilege" of deciding if she wants to use birth control.

I think if you don't read into what I am reading into it, the phrase means nothing at all.

If it doesn't cover a basic right to decide what medical procedures one has the right to avail oneself of absent some state shown compelling interest, then what DOES it cover that matters at all?

If it doesn't cover that, then how does it in fact cover your right to marry someone of another race?

Those are complicated questions that don't have easy answers. Legislatures are the preferred vehicle for resolving such questions, courts as a last resort.

FWIW I still do not see that Griswold would prohibit a ban on the manufacture and sale of contraceptives, but it does block laws that prohibit their use, which is different. Maybe there is subsequent rulings that have fleshed out that it can't limit manufacture/sale, I don't know.

And how can it cover one thing but not another? Because not everything is a fundamental right, Minsky's own words open up that can of worms. When the court has to decide what unenumerated rights are "fundamental", it has to engage in a study of legal history and basically apply its best judgement, but that judgement will be neither perfect, infallible, or without dispute. For a general right to privacy in one's person, home, and possession, there is a good history dating back to the mid-18th century from English common law. For other things, you may be able to extend it out to those things from that basis, or maybe some other basis. For other things, maybe you cannot easily demonstrate that it is any kind of fundamental right. Those are the hard ones, and the ones courts should be hesitant to rule on.

Something that to my mind undermines Roe is that if there is a fundamental right to privacy that means the state cannot intervene in medical decisions about your body, the state would be powerless to regulate things like euthanasia, gender-affirming surgery, amputations for people who have dissociated disorders where they believe specific limbs of their body are "foreign" agents and need removed etc. Yet as far as I know states have at various times regulated all of those things, and most states still regulate euthanasia and "voluntary amputation." Several states ban electroshock therapy, despite continuing evidence it is helpful in some circumstances and has continued to be used in most states.

There is an important distinction the BBs and Ottos of the world miss when they lump decisions made by medical boards/colleges of physicians or whatever the medical regulatory body is in your jurisdiction and legislation which makes medical procedures illegal.  In the former case, the question is the efficacy of the procedure.  It is not, or should not, be a political decision.   The later case is of course a political decision.  Those important distinctions get lost when the debate gets reduced to a question of the powers of the state.  But that is where the inhinged right gets to hides. 

A good example is in this thread when BB equated regulation of birth control pills (a question of efficacy) with the regulation of abortion.  The regulation of abortion in the US has nothing to do with the health of the mother.  It has everything to do with what BB has characterized as the health of the fetus - a purely political question.  It gets so ludicrous that the right talks about of fetal heart beat before the fetus which they claim occurs before an embryo (the proper term at 6 weeks) develops the necessary heart valves to have anything resembling a hear beat.

Quote from: OttoVonBismarck on October 26, 2021, 01:25:24 PM

Quote from: The Minsky Moment on October 26, 2021, 11:28:22 AM
Griswold, Roe and Eisenstadt were all explicitly based on a holding the the 14th amendment bars the states from intruding on fundamental rights absent compelling state interest.  If that principle is repudiated, the consequences would be very significant, as other cases rely on the same constitutional concept - including Obergefell v Hodges - the gay marriage case, and even Loving v Virginia - the case that invalidated state miscegenation laws.

The question of what unenumerated rights are "fundamental" rights, is not one with a black and white definition.

Welcome to constitutional law.  If everything was black and white, we wouldn't have to study it so carefully and the Supreme Court could take more vacations.

Quote from: OttoVonBismarck on October 26, 2021, 01:36:43 PM
Something that to my mind undermines Roe is that if there is a fundamental right to privacy that means the state cannot intervene in medical decisions about your body, the state would be powerless to regulate things like euthanasia, gender-affirming surgery, amputations for people who have dissociated disorders where they believe specific limbs of their body are "foreign" agents and need removed etc. Yet as far as I know states have at various times regulated all of those things, and most states still regulate euthanasia and "voluntary amputation." Several states ban electroshock therapy, despite continuing evidence it is helpful in some circumstances and has continued to be used in most states.

The bar to regulate is rather different then the bar to ban.

It is well established that the state has a compelling interest in the regulation of all manner of things on the basis of protecting its citizens from quackery, fraud, and dangerous procedures.

That is a very, very different bar from the State making the argument that some number of its citizens finds some activity immoral, and hence ought to be banned for others.

It is not at all difficult to understand that distinction, which is why I am skeptical that those pretending that regulating hormonal birth control in order to make sure the products are safe and effective is the same thing as banning them because they think using birth control is against the will of God are making such an argument in good faith.

Quote from: The Minsky Moment on October 26, 2021, 02:48:04 PM

Quote from: OttoVonBismarck on October 26, 2021, 01:25:24 PM

Quote from: The Minsky Moment on October 26, 2021, 11:28:22 AM
Griswold, Roe and Eisenstadt were all explicitly based on a holding the the 14th amendment bars the states from intruding on fundamental rights absent compelling state interest.  If that principle is repudiated, the consequences would be very significant, as other cases rely on the same constitutional concept - including Obergefell v Hodges - the gay marriage case, and even Loving v Virginia - the case that invalidated state miscegenation laws.

The question of what unenumerated rights are "fundamental" rights, is not one with a black and white definition.

Welcome to constitutional law.  If everything was black and white, we wouldn't have to study it so carefully and the Supreme Court could take more vacations.

If only there were some body, some principled group of sober, non-political scholars who could decide such issues!

Quote from: Berkut on October 26, 2021, 02:57:29 PM

Quote from: The Minsky Moment on October 26, 2021, 02:48:04 PM
Welcome to constitutional law.  If everything was black and white, we wouldn't have to study it so carefully and the Supreme Court could take more vacations.

If only there were some body, some principled group of sober, non-political scholars who could decide such issues!

You have far more faith in the non-political nature of judges than I do (and not to mention their sobriety too!).

Here is a thought experiment:  if the state can pass laws regulating abortion where no compelling state interest exists, can the state mandate abortions?  Are there any limits to its power to mandate abortions?  If so, how do those limits differ from the state's power to ban abortions?  Assume in all of this that the state's mandates for abortion cannot be demonstrated to be based on any form of illegal discrimination.

Quote from: Barrister on October 26, 2021, 03:00:42 PM
You have far more faith in the non-political nature of judges than I do (and not to mention their sobriety too!).

Especially in the context of the US. When was the Supreme Court ever a sober, non-political group of scholars?

I actually do believe judges have an important role to play and we damage that if we just turn to "rights". Courts are adjudicatory bodies and shouldn't be there for politics, it's damaging because it makes it more and more difficult to believe they're sober, non-political scholars which is part of the magic of making courts work at all.

I'm not sure what people mean by can the state do x or y.

Quote from: crazy canuck on October 26, 2021, 01:58:17 PM
There is an important distinction the BBs and Ottos of the world miss when they lump decisions made by medical boards/colleges of physicians or whatever the medical regulatory body is in your jurisdiction and legislation which makes medical procedures illegal.  In the former case, the question is the efficacy of the procedure.  It is not, or should not, be a political decision.   The later case is of course a political decision.  Those important distinctions get lost when the debate gets reduced to a question of the powers of the state.  But that is where the inhinged right gets to hides. 

A good example is in this thread when BB equated regulation of birth control pills (a question of efficacy) with the regulation of abortion.  The regulation of abortion in the US has nothing to do with the health of the mother.  It has everything to do with what BB has characterized as the health of the fetus - a purely political question.  It gets so ludicrous that the right talks about of fetal heart beat before the fetus which they claim occurs before an embryo (the proper term at 6 weeks) develops the necessary heart valves to have anything resembling a hear beat.

Euthanasia and electroshock are banned by actual statute, not medical board regulations. ECT is banned by four states by legislative statute, for example in Colorado, Texas etc.

Quote from: grumbler on October 26, 2021, 03:04:09 PM
Here is a thought experiment:  if the state can pass laws regulating abortion where no compelling state interest exists, can the state mandate abortions?  Are there any limits to its power to mandate abortions?  If so, how do those limits differ from the state's power to ban abortions?  Assume in all of this that the state's mandates for abortion cannot be demonstrated to be based on any form of illegal discrimination.

You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

Quote from: OttoVonBismarck on October 26, 2021, 04:28:20 PM

Quote from: grumbler on October 26, 2021, 03:04:09 PM
Here is a thought experiment:  if the state can pass laws regulating abortion where no compelling state interest exists, can the state mandate abortions?  Are there any limits to its power to mandate abortions?  If so, how do those limits differ from the state's power to ban abortions?  Assume in all of this that the state's mandates for abortion cannot be demonstrated to be based on any form of illegal discrimination.

You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

I "lost" you because you don't understand Roe v Wade.  The compelling state interest decision was worded thus:

QuoteAs noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.

So, the state lacks compelling interest until some point in the pregnancy, while the woman's right always exists but 

Quotethat at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

Now, I noted that you quoted my thought experiment but attempted to weasel around answering it.  How would you answer it?

I guess I lost you because the phrase sufficiently compelling all but confirms what I had already said, suggesting the person confused about the holding of Roe is not myself. If there is a sufficiently compelling situation where the State's interests' triumph, it would mean in other scenarios the State still has compelling interests, just not ones that are sufficiently compelling to outweigh the mother's interests.

FWIW your analogy/hypothetical would not have any direct bearing--as stated, the courts have to look at legal history, precedent etc to come to their best decision about whether something is an unenumerated fundamental right. I think it is easier to come to that decision about something like "the right to procreate" than it is "the right to abort a pregnancy", one has been a basic natural right of humans in almost all societies, the other has been prohibited (albeit often with significant lack of enforcement enthusiasm) for thousands of years in almost all societies.

And again, the courts need to be a little careful of their role in society, fleshing out such things is very often better left to legislatures as a matter of policy.

Quote from: OttoVonBismarck on October 26, 2021, 04:28:20 PM
You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

The holding of Roe was that the state lacked a compelling interest before viability: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability."

Roe was decided in the 70s when there was also great concern about explosive population growth.  So taking grumbler's hypothetical, let's imagine a state adopted a law imposing a 2 child maximum akin to the Chinese measures adopted in this period.  What federal constitutional provision, if any, would prohibit this?

Quote from: The Minsky Moment on October 26, 2021, 05:12:34 PM

Quote from: OttoVonBismarck on October 26, 2021, 04:28:20 PM
You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

The holding of Roe was that the state lacked a compelling interest before viability: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability."

Roe was decided in the 70s when there was also great concern about explosive population growth.  So taking grumbler's hypothetical, let's imagine a state adopted a law imposing a 2 child maximum akin to the Chinese measures adopted in this period.  What federal constitutional provision, if any, would prohibit this?

Let's be clear:

Quote
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past.

Roe clearly establishes the state has a valid interest in protecting fetal life, whatever wording we want to use, that interest doesn't "not exist" until the third trimester, it is simply not sufficient (under Roe) for the State to intervene, come the third trimester it is. This framework was amended in Casey.

The court has never held that the right to privacy gives women absolute rights of her body in the context of pregnancy, subsequent jurisprudence has likewise not held the same.

Further this phrase in Roe:

Quote
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

The court created the bolded right out of thin air that day, it did not invent the right to privacy with Roe, nor did it invent the conception of the court being able to protect unenumerated fundamental rights. Whatever one's opinion, a later court could hold that the bolded text was bad law, without throwing out all other jurisprudence on privacy and rights that are "suggested" by the "penumbras" of the constitution. It was a judgement call that found such a right in the first place, and one that should have been best left to legislatures.

The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

Quote from: Berkut on October 26, 2021, 05:28:28 PM
The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

It was left to legislatures in almost the entire world.

Quote from: OttoVonBismarck on October 26, 2021, 05:37:46 PM

Quote from: Berkut on October 26, 2021, 05:28:28 PM
The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

It was left to legislatures in almost the entire world.

Most of human history is a story of humans not having the right to their own bodies. That isn't a compelling reason to justify your misogyny today.

Quote from: Berkut on October 26, 2021, 05:40:36 PM

Quote from: OttoVonBismarck on October 26, 2021, 05:37:46 PM

Quote from: Berkut on October 26, 2021, 05:28:28 PM
The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

It was left to legislatures in almost the entire world.

Most of human history is a story of humans not having the right to their own bodies. That isn't a compelling reason to justify your misogyny today.

Man, you were really hoping you'd find an excuse to throw around insults like that when this thread started, weren't you?

The question of whether one agrees with legalized abortion, and whether one thinks Roe was good law, good policy, or good function of a constitutional state, are not the same question. I've always been broadly skeptical of the breadth of the Supreme Court's judicial review power (which I note again--is out of sync with much of the world), especially due to our Supreme Court having lifetime tenure with only extremely difficult mechanisms available to curtail their rulings, all of which have only been used very sparingly in our national history.

Just because you really believe in something isn't in and of itself enough to make something law, nor should it be. Laws made without the broad consensus of society, in a free society, are often going to cause problems, which is one reason in a free society we tend to let elected officials do the law making.

I'd really like to see gerrymandering eliminated, I'd like to see the Senate changed to at least be partially-population weighted to gut the influence of extremely small population states etc, but we'd have to go through a process to see these things happen, wanting an end run around the process undermines civil government.

Quote from: OttoVonBismarck on October 26, 2021, 04:25:46 PM

Quote from: crazy canuck on October 26, 2021, 01:58:17 PM
There is an important distinction the BBs and Ottos of the world miss when they lump decisions made by medical boards/colleges of physicians or whatever the medical regulatory body is in your jurisdiction and legislation which makes medical procedures illegal.  In the former case, the question is the efficacy of the procedure.  It is not, or should not, be a political decision.   The later case is of course a political decision.  Those important distinctions get lost when the debate gets reduced to a question of the powers of the state.  But that is where the inhinged right gets to hides. 

A good example is in this thread when BB equated regulation of birth control pills (a question of efficacy) with the regulation of abortion.  The regulation of abortion in the US has nothing to do with the health of the mother.  It has everything to do with what BB has characterized as the health of the fetus - a purely political question.  It gets so ludicrous that the right talks about of fetal heart beat before the fetus which they claim occurs before an embryo (the proper term at 6 weeks) develops the necessary heart valves to have anything resembling a hear beat.

Euthanasia and electroshock are banned by actual statute, not medical board regulations. ECT is banned by four states by legislative statute, for example in Colorado, Texas etc.

You either did not read or did not understand my post.  Your examples demonstrate my point.  Banning Euthanasia is another good example of a political decision.  It has nothing to do with the efficacy of the treatment to end needless suffering.  The recent court challenges in Canada aptly demonstrated that point. 

I am not convinced that a gathering of slave owners is inherently a better source of law than democratically elected legislatures.

Quote from: OttoVonBismarck on October 26, 2021, 05:19:41 PM

Quote from: The Minsky Moment on October 26, 2021, 05:12:34 PM

Quote from: OttoVonBismarck on October 26, 2021, 04:28:20 PM
You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

The holding of Roe was that the state lacked a compelling interest before viability: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability."

Roe was decided in the 70s when there was also great concern about explosive population growth.  So taking grumbler's hypothetical, let's imagine a state adopted a law imposing a 2 child maximum akin to the Chinese measures adopted in this period.  What federal constitutional provision, if any, would prohibit this?

Let's be clear:

Quote
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past.

Let's be clear:  this statement has no bearing on any discussion here, since no one here is arguing "that one has an unlimited right to do with one's body as one pleases."  Why not?  Because most of us accept the rule of law, which in this case is the clear opinion of the USSC.  It is only you that is arguing that the court was wrong.

QuoteRoe clearly establishes the state has a valid interest in protecting fetal life, whatever wording we want to use, that interest doesn't "not exist" until the third trimester, it is simply not sufficient (under Roe) for the State to intervene, come the third trimester it is. This framework was amended in Casey.

Roe clearly establishes that the state has no compelling interest in a woman's pregnancy until the fetus is viable.  Casey does not change that finding.

QuoteThe court has never held that the right to privacy gives women absolute rights of her body in the context of pregnancy, subsequent jurisprudence has likewise not held the same.

Further this phrase in Roe:

Quote
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

The court created the bolded right out of thin air that day, it did not invent the right to privacy with Roe, nor did it invent the conception of the court being able to protect unenumerated fundamental rights. Whatever one's opinion, a later court could hold that the bolded text was bad law, without throwing out all other jurisprudence on privacy and rights that are "suggested" by the "penumbras" of the constitution. It was a judgement call that found such a right in the first place, and one that should have been best left to legislatures.

The court interpreted the right to privacy to include the right to make medical decisions for one's self, absent a compelling state interest to the contrary.  A later court ruling could invalidate an ruling which extended explicit language to implicit cases.  They would need a very compelling reason to do so (as in all cases which reverse precedent), however, unless that particular court is motivated purely by partisan political interests.  It is clearly the latter which created the current court, as Mitch McConnel has admitted.

Quote from: OttoVonBismarck on October 26, 2021, 05:48:25 PM

Quote from: Berkut on October 26, 2021, 05:40:36 PM

Quote from: OttoVonBismarck on October 26, 2021, 05:37:46 PM

Quote from: Berkut on October 26, 2021, 05:28:28 PM
The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

It was left to legislatures in almost the entire world.

Most of human history is a story of humans not having the right to their own bodies. That isn't a compelling reason to justify your misogyny today.

Man, you were really hoping you'd find an excuse to throw around insults like that when this thread started, weren't you?

The question of whether one agrees with legalized abortion, and whether one thinks Roe was good law, good policy, or good function of a constitutional state, are not the same question. I've always been broadly skeptical of the breadth of the Supreme Court's judicial review power (which I note again--is out of sync with much of the world), especially due to our Supreme Court having lifetime tenure with only extremely difficult mechanisms available to curtail their rulings, all of which have only been used very sparingly in our national history.

Just because you really believe in something isn't in and of itself enough to make something law, nor should it be. Laws made without the broad consensus of society, in a free society, are often going to cause problems, which is one reason in a free society we tend to let elected officials do the law making.

I'd really like to see gerrymandering eliminated, I'd like to see the Senate changed to at least be partially-population weighted to gut the influence of extremely small population states etc, but we'd have to go through a process to see these things happen, wanting an end run around the process undermines civil government.

I really believe that there are things like basic human rights, and it seems pretty blindingly clear to me that the right to make your own decisions about your own body has to be one of them - if there are ANY such basic human rights.

Protected rights, by definition are NOT about the "broad consensus of society". Indeed, that is a bizarre position to take in defense of the current SC dismantling Roe v Wade given that the broad consensus of society today is that abortion ought not to be banned.

But again, you don't get to vote as to whether or not people get to have sovereignty over their own bodies. At least, you should not be allowed to vote over that. You disagree, and think the particular case where the State gets to decide is one that is core to women's fundamental control of their own selves.

The practical effects of such a position is to deny women, and only women, the right to control their own bodies. If you don't like the term misogyny to describe that, I suspect that you being upset with me is the least of our worries over your demand that the State get to choose how and when women (and only women) are allowed to procreate. Remember - we have already established that right along with this is the right to use birth control, which you ALSO are fine with taking away.

Quote from: OttoVonBismarck on October 26, 2021, 05:48:25 PM
Just because you really believe in something isn't in and of itself enough to make something law, nor should it be. Laws made without the broad consensus of society, in a free society, are often going to cause problems, which is one reason in a free society we tend to let elected officials do the law making.

In principal, I agree, which is why I think that the current USSC's anticipated lawmaking is going to crush the reputation of the Supreme Court for at least a generation, and maybe forever.   The fact of the matter, though, is that the US has a two-party system with one party dedicated to the failure of government.  Expecting good lawmaking out of the current political climate is naïve.  The best we can hope for is gridlock, but the current court will not tolerate that.  They will engage in full-scale reactionaryism, by all accounts.

Quote from: OttoVonBismarck on October 26, 2021, 05:19:41 PM
Roe clearly establishes the state has a valid interest in protecting fetal life, whatever wording we want to use

The wording matters because stronger liberty interests require stronger state justifications to overcome.

Quote from: Berkut on October 26, 2021, 05:28:28 PM
The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

But the alternative is leave it to courts. It's just displacement.

QuoteI really believe that there are things like basic human rights, and it seems pretty blindingly clear to me that the right to make your own decisions about your own body has to be one of them - if there are ANY such basic human rights.

Protected rights, by definition are NOT about the "broad consensus of society". Indeed, that is a bizarre position to take in defense of the current SC dismantling Roe v Wade given that the broad consensus of society today is that abortion ought not to be banned.

But don't those rights have power precisely because they are endorsed by a broad consensus of society? Society defines the limits of those rights and I absolutely agree on this as a defence on the SC dismantling Roe v Wade - but if the decision is made in a court then you only need a consensus of 5 people. I think that is far more vulnerable to fail to protect rights than things that are voted on.

The rights in the constitution are upheld in the way they are because there is a broad consensus of society that supports the constitution (except for when there wasn't) but that leaves the determination of what those rights mean in the hands of the SC who have, at best, a mixed record. A number of those rights have been pretty malleable in the face of social opinion, executive power in a crisis etc. Which, I think, raises a question of how much protection those rights offer (for example for prisoners, for people whose voting is being restricted) and it's fairly common that there's more support in society at large than the offices of SC justices.

If Republicans had to convince voters to ban abortion - they couldn't do it. But they don't they just have to work the courts better than Democrats.

Incidentally recently got - and have not read - a new book that sounds very interesting by Linda Colley - The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (https://www.theguardian.com/books/2021/apr/24/the-gun-the-ship-and-the-pen-by-linda-colley-review-how-the-modern-world-was-made). Sounds appropriate for all this conversation :lol:

"If Republicans had to convince voters to ban abortion - they couldn't do it. But they don't they just have to work the courts better than Democrats."

That isn't the issue.  The issue is that, if Democrats had to convince voters to allow abortion, they couldn't do it.  Nor gay rights, nor same-sex marriage, nor banning miscegenation laws, etc.  Changing laws is hard, especially when the minority has enormous powers to stop change.  Loving v. Virginia didn't arise because the Virginia state legislature was tortured by the idea of miscegenation and would soon have eliminated those laws itself.  Laws against miscegenation would still exist in Virginia today if not for the USSC.

I think that's exactly the point though.

If you're relying on courts and rights then you will occasionally have leaps through a court ruling. But those rights endure either as long as the court remains convinced it was right or until society catches up - and there is always the chance of a sudden overnight reversion. It could be because of a crisis or social views not changing, or a party in a minoritarian system building a huge part of their political identity and power around controlling the court to overturn that ruling. That's the downside of that system as numerous people on the wrong side of Supreme Court judgements over the years have found out when it acts like a mouse under the throne.

The alternative is slower but, I'd suggest more enduring. I think gay rights and gay marriage are under far less risk of being rolled back in, say, Ireland or Australia right now despite taking longer to get there via campaigns and social change and citizens assemblies and, ultimately, a referendum (non-binding but implemented by an anti-gay marriage party in Australia. The same goes for abortion in Ireland now.

Because to get back to this position after a court changes it's mind you either need to win back from this 6-3 court (which took the GOP 40 years to build) or you need to amend the constitution. So either way the end effect is you still need to convince voters. Andyou should get rid of the system giving the minority so much power because it's clear one side intends to rule with only a minority, as long as that's enough to block things especially judges.

I think that's exactly the point, though.

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.

The Republicans have not been able to destroy the US political system using the minority.  That would be worse than the current truth, which is that they wrecked it in the majority.

Quote from: Sheilbh on October 26, 2021, 08:17:05 PM
Because to get back to this position after a court changes it's mind you either need to win back from this 6-3 court

Difficult to do when nominees of Democratic presidents are not permitted on the Court.

QuoteSo either way the end effect is you still need to convince voters.

You need to win the Senate seats in 26+ states, a different and more formidable prospect.

Quote from: Sheilbh on October 26, 2021, 08:17:05 PM
The alternative is slower but, I'd suggest more enduring. I think gay rights and gay marriage are under far less risk of being rolled back in, say, Ireland or Australia right now despite taking longer to get there via campaigns and social change and citizens assemblies and, ultimately, a referendum (non-binding but implemented by an anti-gay marriage party in Australia. The same goes for abortion in Ireland now.

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.

Quote from: crazy canuck on October 26, 2021, 05:49:44 PM

Quote from: OttoVonBismarck on October 26, 2021, 04:25:46 PM

Quote from: crazy canuck on October 26, 2021, 01:58:17 PM
There is an important distinction the BBs and Ottos of the world miss when they lump decisions made by medical boards/colleges of physicians or whatever the medical regulatory body is in your jurisdiction and legislation which makes medical procedures illegal.  In the former case, the question is the efficacy of the procedure.  It is not, or should not, be a political decision.   The later case is of course a political decision.  Those important distinctions get lost when the debate gets reduced to a question of the powers of the state.  But that is where the inhinged right gets to hides. 

A good example is in this thread when BB equated regulation of birth control pills (a question of efficacy) with the regulation of abortion.  The regulation of abortion in the US has nothing to do with the health of the mother.  It has everything to do with what BB has characterized as the health of the fetus - a purely political question.  It gets so ludicrous that the right talks about of fetal heart beat before the fetus which they claim occurs before an embryo (the proper term at 6 weeks) develops the necessary heart valves to have anything resembling a hear beat.

Euthanasia and electroshock are banned by actual statute, not medical board regulations. ECT is banned by four states by legislative statute, for example in Colorado, Texas etc.

You either did not read or did not understand my post.  Your examples demonstrate my point.  Banning Euthanasia is another good example of a political decision.  It has nothing to do with the efficacy of the treatment to end needless suffering.  The recent court challenges in Canada aptly demonstrated that point.

That's possible, I often just skim your posts due to your general stupidity.

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.

Let's talk about the right to privacy of the marital bed, one of the things cited in Griswold. There is a very strong argument that right traces itself back to early English common law, and the justices made explicit reference to it. While we inherit a lot of our legal system from the English, it isn't all that common for our courts to cite mid-18th century English judicial rulings in our court system, even though it isn't unheard of, the fact that one did so to argue for a right to privacy of the marital bedroom, suggests that there is a very strong English common law precedent that a man and his wife, have a right to privacy in their bedroom. They have a right to privacy in deciding if they are going to have children, they have a right to privacy in deciding if they are going to take 'actions' within that bedroom that might limit procreation (i.e. pull out method or other alternatives), they have the right to privacy in their papers, possessions et al. The State cannot infringe on that without serious justification under the law, typically as part of a criminal investigation where sufficient evidentiary barriers have been breached.

I would stipulate that much as we might wish it to be so there is no strong English common law precedent to a right to terminate a pregnancy. In fact, an unbiased reading of the history of our laws, practices and customs and then the laws practices and customs of the English legal system the predates our own, suggests very strongly that if there is a common law rule on abortion it is that--it is wrong and should be illegal. In fact in the early 19th century abortion was a capital crime in England.

There is a strong argument to be made that instead of a fundamental right to practice abortion, there is an overwhelmingly strong and historical precedent to the right of society to stop abortions, and to punish people who commit abortion. There was a similar precedent around adultery as well. Changing times change the law, and people elect representatives who pass new laws to reflect that. Roe v Wade short circuited that process and created the legal fiction that there was some ancient right to terminate a pregnancy, where they had never been one.

Quote from: grumbler on October 26, 2021, 08:32:36 PMif 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.

QuoteSheilbh, 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.

Quote from: Sheilbh on October 27, 2021, 04:32:49 AM
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.

Quote from: OttoVonBismarck on October 27, 2021, 01:59:45 AM
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.

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

Quote from: grumbler on October 27, 2021, 12:47:10 PM

Quote from: OttoVonBismarck on October 27, 2021, 01:59:45 AM
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.

QuoteThe 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.

Quote from: grumbler on October 27, 2021, 12:47:10 PM

Quote from: OttoVonBismarck on October 27, 2021, 01:59:45 AM
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'.

Quote from: grumbler on October 27, 2021, 12:47:10 PMThe 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.

QuoteYou 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.

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.

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

Quote from: Berkut on October 27, 2021, 01:24:18 PM
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.

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:

QuoteThere 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.

Quote from: grumbler on October 27, 2021, 01:45:40 PM
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 (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.  :unsure:

Quote from: Barrister on October 27, 2021, 01:49:39 PM
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.

Quote from: grumbler on October 27, 2021, 01:45:40 PM
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.

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?

Quote from: Iormlund on October 27, 2021, 02:13:47 PM
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? :huh:

Quote from: Iormlund on October 27, 2021, 02:13:47 PM
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.

Quote from: Iormlund on October 27, 2021, 02:13:47 PM
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.

Quote from: The Minsky Moment on October 27, 2021, 01:56:34 PM

Quote from: Barrister on October 27, 2021, 01:49:39 PM
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.

Quote from: Sheilbh on October 27, 2021, 01:17:05 PM
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.

Quote from: Sheilbh on October 27, 2021, 01:17:05 PM
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.

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

Quote from: The Minsky Moment on October 27, 2021, 03:23:27 PMI 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.

If Trump wins again the balloon goes up.

Quote from: grumbler on October 27, 2021, 12:47:10 PM

Quote from: OttoVonBismarck on October 27, 2021, 01:59:45 AM
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.

QuoteThe 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.

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.

Quote from: Berkut on October 27, 2021, 02:50:52 PM

Quote from: The Minsky Moment on October 27, 2021, 01:56:34 PM

Quote from: Barrister on October 27, 2021, 01:49:39 PM
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.

Quote from: crazy canuck on October 27, 2021, 03:05:39 PM
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.

Quote from: Barrister on October 27, 2021, 09:19:52 PM

Quote from: Berkut on October 27, 2021, 02:50:52 PM

Quote from: The Minsky Moment on October 27, 2021, 01:56:34 PM

Quote from: Barrister on October 27, 2021, 01:49:39 PM
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.

Quote from: OttoVonBismarck on October 27, 2021, 08:44:04 PM
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?

Quote from: OttoVonBismarck on October 27, 2021, 08:44:04 PM
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 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 :blink:

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.

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.

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! :P

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.

Quote from: Barrister on October 27, 2021, 09:21:40 PM

Quote from: crazy canuck on October 27, 2021, 03:05:39 PM
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.

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

Quote from: crazy canuck on October 28, 2021, 01:57:32 PM

Quote from: Barrister on October 27, 2021, 09:21:40 PM

Quote from: crazy canuck on October 27, 2021, 03:05:39 PM
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.

Quote from: The Minsky Moment on October 28, 2021, 07:40:11 AM

Quote from: OttoVonBismarck on October 27, 2021, 08:44:04 PM
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.)

Quote from: OttoVonBismarck on October 28, 2021, 04:40:15 PM
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)?

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?

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. 

Quote from: Barrister on October 28, 2021, 03:28:37 PM

Quote from: crazy canuck on October 28, 2021, 01:57:32 PM

Quote from: Barrister on October 27, 2021, 09:21:40 PM

Quote from: crazy canuck on October 27, 2021, 03:05:39 PM
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".

Quote from: grumbler on October 28, 2021, 05:19:00 PM

Quote from: OttoVonBismarck on October 28, 2021, 04:40:15 PM
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.

Quote from: The Minsky Moment on October 28, 2021, 05:50:53 PM
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.

Quote from: Admiral Yi on October 28, 2021, 05:39:11 PM
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.

Great answer Joan.

You gave me wood

Quote from: OttoVonBismarck on October 28, 2021, 08:44:52 PM
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.

Douglas did not invoke the common law in Griswold, but "penumbras" emanating from the Bill of Rights, although there was a footnote indirectly citing to an 18th century English case on freedom on the press.

Blackmun quoted Coke and Blackstone in Roe but it is peripheral to his decision.

Quote from: OttoVonBismarck on October 28, 2021, 08:40:27 PM
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.

The closest I can find to a "a right to procreation" is Skinner v Oklahoma  one part of which states that

QuoteWe are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.

Note that this is a civil right here, not a human right or a constitutionally-protected one.  Note also that this case was decided not on the basis of such a civil right, but on the basis that sterilization could only be ordered if it met the standards of the equal protection clause of the Fourteenth Amendment, which the Oklahoma law did not do because it distinguished between various types of larceny, some subject to sterilization, some not

QuoteWhen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment... Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination.

Absent this unequal treatment, sterilization is allowed in some circumstances, as Buck v Bell demonstrates.

All cases that I could find which cite reproduction as a fundamental right (not a civil right) include abortion or contraception rights - the very cases you claim were wrongly decided.  You can't have it both ways.

Not, I am sure, that mere facts will persuade you.  You've been blundering through this whole debate with your alternate facts and claiming that they are superior to my demonstrated facts.

Quote from: The Minsky Moment on October 28, 2021, 09:11:45 PM

Quote from: OttoVonBismarck on October 28, 2021, 08:44:52 PM
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.

Douglas did not invoke the common law in Griswold, but "penumbras" emanating from the Bill of Rights, although there was a footnote indirectly citing to an 18th century English case on freedom on the press.

Blackmun quoted Coke and Blackstone in Roe but it is peripheral to his decision.

I said he "cited" it, a foot note is almost definitionally a citation, is it not?

Douglas cited a US Supreme Court case Boyd v. US.  It was Boyd that cited the old English case.  Since Douglas' penumbral argument is that the meaning and scope of the constitutional right of privacy is NOT confined by the common law understanding of the individual amendments, it is unfair to characterize him as making an argument based on the historical understanding of the common law.  Indeed Boyd was the case that announced the 4th amendment exclusionary rule, which was definitely not recognized in the English common law.

Quote from: The Minsky Moment on October 28, 2021, 08:54:13 PM
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.

And I think that is fundamentally true - I think the realists are right on that. Like BB I would also say that the political here is more than just ideological or partisan preferences. For example I think Roberts' concern with the legitimacy of the Court (and in particular the reputation of the Roberts Court) is as much of a political driver as his views as a private citizen. The results may end up being different depending on which has priority - and they will, I think, be increasingly difficult for him to balance now it's a 6-3 court with fewer institutionalists.

I think this was true in the first opinion - it's years since I read but I remember the Bob Woodward book on the Supreme Court described that Blackmun really struggled with a legal argument for his ruling that didn't end up going down lots of rabbit holes. My impression was that his almost policy preference was to make clear that there were constitutional protections for medical privacy and for the relationship between an individual and their doctor (possibly inspired by his background as counsel for the Mayo Clinic). I think that drove his decision and the reaesoning follows, not the other way round.

I think one of the problems in the "why are the Democrats so bad at politics" question is that I think the right, while not acknowledging it, have broadly adopted the realist position while many Democrats - including liberals on the court haven't and still believe it's a collegail dispute of legal pphilosophy.

Having said that there are some judges who do seem more legally based than not - I'd add Gorsuch to that who I think has written at least a couple of very interesting and possibly surprising opinions (endorsed by RBG, Breyer, Kagan, Sotomayor) that reached a liberal conclusion because of his textual and occasionally originalist analysis. It's why I have a little more respect for him than, say, Kavanaugh or Alito.

Incidentally on the "can the state do x" and rights debate - the European Court of Human Rights has an explicit right to privacy (article 8) and heard a challenge to Ireland's constitutional restrictions on abortion. The position in Ireland was that the constitution acknowledged the life of the unborn and it and the mother had an "equal" right to life. This meant that abortion was almost always banned (and tens of thousands of women came to the UK to get one) except in narrow cases where the mother's life was at risk. The ECtHR said the right to privacy "cannot be interpreted" as creating a right to abortion. It just ruled that Ireland's law on this (which was shaped by case law) was insufficiently clear and there was nowhere women could go for a decision on whether or not they met the criteria, so there was uncertainty which did breach human rights.

Obviously the Convention is not a constitutional document and the ECtHR generally shows a "broad margin of appreciation" for states to interpret their human rights obligations - to the extent that when it comes to, say, spying by domestic intelligence agencies or law enforcement those rights might as well not exist <_< - so it's a very different system. But also a very different conclusion. It might be of interest to conservative lawyers if they didn't have that weird issue with citing foreign judgements :lol:

Quote from: The Minsky Moment on October 28, 2021, 08:54:13 PM
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.

This is the core issue right here, and it's rare to see someone from the legal profession even acknowledge there is valid critique of the usurped powers held by the American judiciary. I don't think the system is so terrible it should be thrown out completely, I think judges have to make interpretive judgements, and I think their function in our society is mostly necessary and proper given the structure of our legal / constitutional system and any alternative we set up would have problems of its own.

Where I do ultimately take issue is in two areas: 1) the use of the Supreme Court's rulings as the ultimate "appeal to authority" and 2) the lack of sufficient procedural guardrails and checks on Supreme Court power.

On the point of one, and you can see it here with Berkut's temper tantrum, when someone finds a Supreme Court decision they agree with, it is the best, most reasoned, most perfect expression of law that can be had. Roe was divine judgement, or even better--divine revelation, the perfect divine revelation that shrouded in the smoky mists of the right to privacy, hid a right to procure an abortion, that only was waiting for its St. Paul to receive this revelation and preach it to the masses. Any alternative to this view is the view of a rube, an imbecile, and worse someone that hates women and wants to see women punished.

The reality of course is far more nuanced. I actually have said before (not in this thread, but elsewhere) that the rights weighing framework of Roe was pretty good as a concept for addressing the complex issues involved. But I've also ultimately always said that the simpler outcome would have been to punt it back to the status quo ante--that the States can regulate abortion under the laws of their constitutions and rulings of their courts, I do not believe the Federal Supreme Court had to issue Roe, and I do not believe it was wise that it did. I think it was a political decision to issue the ruling and I think the best way to evaluate a political decision is to evaluate it as just that--and not to pretend it is an act of divine revelation.

I'll also note that, not to make it personal, I've seen Joan shit on the Heller decision quite a good many times, but the reality is [Heller met all the same prima facie check boxes that any other Supreme Court decision needs to meet. It does not just contain a passage saying "Fuck the Dems guns are good." It operates within the constraint of explanation. Someone with Joan's political proclivities can say it's a bad example of meeting that, but--because it is ultimately a political act, it's impossible to separate the political out of it. Just as it is for Roe.

Judicial review as we have it in the United States is not a universal norm, is it a good system? I think it mostly is okay, but I think it should be recognized it can never be entirely apolitical. That means it should not be looked at the same way as what I would call (and it's easy to take issue with the wording) procedural issues of judicial activity. When a judge rules that some official has taken an action that is at clear contravention to their statutory bailiwick (like the Kentucky County Clerk who was refusing to issue marriage licenses), that's a fairly simple procedural activity. When a judge is saying someone has a specific right that, as it is expressed, has not previously been implemented in society, the judge is acting politically. Even if the judge's legal arguments are very sound, it is an inherently political act. That doesn't necessarily mean malicious, the argument could be one that very naturally follows from the Constitution, existing statute and etc, but it is still a political action. It is a politically appointed official taking an action that causes changes to the political climate in the country, that's a political act.

On point 2), the lack of procedural guardrails on the court, is why I think it is so important to acknowledge that the Supreme Court is an inherently political institution, and that many of its decisions are inherently political decisions. If you feel judicial review is, on net, worth having, you essentially accept that the judicial branch gets to have some level of politically policymaking power. I would say with that realization the checks and limits to the judiciary should have been more carefully considered when Article III was written. There are a number of ways things could be improved, and I can't say for sure what reforms would be best, but it should be noted:

-Political appointees with lifetime tenure in a political position, can continue to make political decisions that affect our society for decades after the political faction that lead to their appointment has long since gone defunct. This happened nearly at the very beginning of our country, when Federalist John Marshall was given a spot on the bench which he held for literally decades after his political party had ceased being nationally relevant. He and other Federalist judges frequently issued rulings that were inherently political in nature, that undermined the governance of (elected) politicians from the other party.

-There is no mechanism in our system to even attempt to ensure an appointed judge is apolitical or non-partisan, because of the flawed fiction in our constitutional design that presumed the legislature would not be beholden to factionalism.

-The ability to countermand a political decision by the Supreme Court is incredibly limited. You can wait years to change the composition of the court, and hope for a lucky break in the rulings. You can pass a constitutional amendment. That's the two clean ways. There are a few other ways that mostly violate norms and only have a light history of use: selected rejection of rulings by the executive (which exposes another problem that the only counter to such executive misbehavior is impeachment--and only certain types of rulings can be countered this way), jurisdiction stripping which has been used in limited contexts but is largely not seen as politically appropriate for most purposes and court-packing / court shrinking, which stopped being used after the mid-19th century.

We have a constitution that is built to enshrine the privileges of landowners and yeoman farmers almost to the complete exclusion of everyone else, and that has baked in systems that encourage gerontocracy, anti-majoritarianism and etc. We made the constitution virtually impossible to amend, empowering destructive sectional interests. We also allowed political elements in the late 19th/early 20th century to deliberately carve out a number of very low population states from Western territories, that it was fully understood would be permanent bulwarks against urbanism and industry on behalf of agrarianism. In this system I think having another body that lets people who can't win popular elections further entrench their power almost indefinitely, is poor design.

There is no legal debate about there existing a "right to abortion". That is a total red herring.

People act like Roe v Wade is some kind of explicit right to abortion at any time and for any reason. It is not, and in fact explicitly acknowledges that there is in fact a compelling state interest in the life of the fetus. All it does is also acknowledge that that interest is not exclusive, and must be balanced against a women's right to privacy and basic liberty.

Roe v Wade did not make abortion legal, always. It only made it legal *sometimes*. The repeal of it is not some return to rational, reasonable, and considered balancing of competing interests - that is what we have now.

The repeal of it is  return to allowing states to not balance those interests at all, indeed,  a place where a woman having an actual right to privacy simply does not exist at all. And that will most certainly get used in placed other then abortion.

You can't have it both ways. You cannot acknowledge that a woman does in fact have a right to privacy, but that in this particular area, that right has no weight at all. If that is true, then it has no weight in all areas.

Otto, that is a very reasonable response, mostly.

However, I would dispute the idea that anyone on this side is simply looking at the specific results and then claiming it is a good result - indeed, I would argue exactly the opposite.

I look at Heller and see clearly bullshit reasoning that has no relevance to the actual 2nd Amendment, and is 100% the outcome of the politicization of the USSC by the NRA in a very clear and coordinated effort that spanned years, if not decades.

And we are seeing the exact same thing happening with Roe v Wade. The views of the people haven't changed since then. Our understanding of science has not changed. Indeed, if you look at what has changed in society since RvW was decided, if it were all just "politics" and the will of the people, it would be going the other way. No - the change is simply that the right has spent a couple decades subverting the Court from even the fig leaf of non-political objectivity, which is what they did when they invented the fiction of the 2nd being about "personal protection". All they had to do to make that work is not actually pay any attention to what the amendemnt actually says, what the history of the US was for a couple hundred years, what the stated intent of the people who wrote it said, and what the will of the majority of Americans actually wanted.

Using the criteria you claim, Heller meets none of them. It is simply that the NRA managed to craft a political narrative, and jam it down the throats to the majority by getting the right people onto the Court. Now, our system does vest the USSC with that power, so here we are today. That doesn't make it good legal thinking, anymore than the invented idea that corporations are people and hence have free speech rights is a good idea.

The USSC makes all kind of shitty, objectively terrible decisions. They have a long and sordid history of it.

And you can, in most cases, easily see why those decisions were made despite being clearly complete bullshit. Because there was a concerted effort to circumvent the ideals of what it is meant to be, which is in fact a non-political arbiter intended to actually protect the people from the whims of the political "majority". It doesn't do that well, and ironically, in most recently terrible decisions, the failure has actually been to protect the majority from the whims of a political minority who has decided that the norms of democractic behavior and legal minimalism are simply not as important as their desire to have lots of guns, let money subvert democracy, and now to make sure women aren't allowed to control their own health.

This is standard "Accuse the other side of doing exactly what YOU are doing".

Quote from: OttoVonBismarck on October 29, 2021, 01:15:49 PM
I'll also note that, not to make it personal, I've seen Joan shit on the Heller decision quite a good many times, but the reality is [Heller met all the same prima facie check boxes that any other Supreme Court decision needs to meet. It does not just contain a passage saying "Fuck the Dems guns are good." It operates within the constraint of explanation. Someone with Joan's political proclivities can say it's a bad example of meeting that, but--because it is ultimately a political act, it's impossible to separate the political out of it. Just as it is for Roe.

I don't really have a problem with the outcome of Heller - pragmatically, I think it was a pretty reasonable way of balancing the strong views about gun rights held by many Americans as against the interest of the state in rational regulation.  I certainly agree that the decision was made  within the constraint of explanation -  Scalia was quite explicit about what he was holding and why.   I just find it ironic that the Court's most iconic partisan of textual readings using original meanings authored a decision that whatever its pragmatic merits is pretty glaringly unmoored from the text.

In a broader sense, I see the 2nd amendment as what I'd call a "constitutional embarrassment".  It's an embarrassment to the "left", because it clearly speaks of a right of the people, and the left is supposed to stand for a broad view of such rights, and yet historically the left has sought to interpret the 2nd amendment to a nullity.  But it's also an embarrassment to the "right" because whatever the 2nd amendment was supposed to be about, it's clear it didn't have much to do with the way most partisans think about gun rights today.  There are a few such embarrassments - the 11th amendment is one of them but more obscure - and the usual approach of the Court is to wave its hands to reach a pragmatic result without much regard to the text.  That's how I see Heller.

On the issue of judicial review generally, there are constraints including the case and controversy requirement (standing), the fact that the Court is passive and can't act without a case, congressional control over Court appellate jurisdiction and other court-made limits like the political question doctrine and the doctrine of constitutional avoidance.

That said, the fact that the Court can remove questions entirely from political decision is very much a double edge sword.  The value of that power can be seen in the 50s era civil rights ruling when the Court took the initiative to upend the cozy post-bellum consensus between North and South on Jim Crow.  Or more recently when the Court resisted the worst excesses of the post-9/11 infringement on civil liberties.  On the flip side is a decision like Dred Scott which ultimately fueled the fire of Civil War, or like Lochner - which effectively froze economic regulation for decades until FDR and the court packing threat.   Although to my mind the problematic decision of today's era is not Roe but Citizens United.