It’s not that clear in general, but there are two reasons. First, states have the right to refuse to recognize the pronouncements of sister-states when doing so is contrary to the state’s public policy. This is fuzzy, but issus of morality are probably within its ambit. Second, the federal Defense of Marriage Act explicitly says that states do not have to recognize same-sex marriages granted by other states. The FF&C Clause (unlike similar provisions) explicitly gives Congress the power to delineate how it will be enforced, so DOMA is presumably a legitimate exercise of that power. (I have some views about that, but they’re outside the scope of the thread.)
Also presuming here, and I could be wrong, but I guessed that Bricker meant simply putting five Justices on the Supreme Court that would vote the way the president wanted, rather than deciding the issue based on the facts and supporting legal arguments. I would characterize this as “dishonest”.
Actually, I believe he means something else entirely by “dishonest votes”.
Presumptive SCOTUS nominees more or less have to indicate that they believe Roe to be settled law to pass Congressional muster (both Roberts and Alito did so, despite personal opposition on the part of both). It’s part of a more general “requirement” of SCOTUS nominees that they generally agree with long-standing precedents as proof of their worthiness to enforce them.
In other words, the five Justices would have to tell Congress they weren’t inclined to overturn Roe at their confirmation hearings, and then go ahead and do it once appointed.
I’d think this would be much harder to enact at the state level. A sate cannot prevent a resident from taking up residence in another state. Once the pregnant woman takes up residence in the new state why would she be subject to the laws of the first state? Once the abortion is performed she moves back and takes up residence in her former state again.
It would seem a state would have to pass a law restricting the taking up again of residence somehow since that is the only way to deny state citizenship as the 14th Amendment provides that all US citizens are citizens of the state wherein they reside. This would seem to make it very different from the international situation.
The state that allowed abortions, could arguably perhaps, say you must be a resident for a year before you can get an abortion making them effectively illegal for out-of-staters. But that would be under the control of the state permitting abortion not the state banning it.
It’s hard to see how that has meaning under your interpretation.
We may just have different philosophies for interpreting Bricker. Are we bound by the original intent of Bricker’s creators? Or do we believe in a living Bricker? Are we obliged to examine Bricker’s penumbras and emanations?
(I’ll do the penumbras if you’ll handle the emanations.)
Article V of the Constitution on amendments provides:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, . . . which . . . shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several states . . . .As such, to pass an amendment, you need two thirds of the House and Senate and three quarters of the states.
That means you’ll need to convince 67 Senators and 290 Representatives to get your amendment to the states, and then legislative approvals from 38 states.
I believe in a strict constructionist approach to the interpretation of Bricker, and I denounce the activist Bricker interpreters who are legislating from the bench.