And here are the free speech fences:
Fair comments. See these two articles:
I count 18, which is closer to 1/3 than 1/2 of US States. That is assuming those pre-Roe and trigger bans would completely (or as the article puts it, near-totally) ban abortion.
~Max
Even admitting so, on their own neither the Fourth and Fifth Amendments, nor the basic history of our country, nor the English common law, give any department of the federal government the power to nullify state law.
Traditionally the unenumerated rights are protected from state infringement via substantial due process or equal protection, in the Fourteenth Amendment. (Using the Ninth Amendment is a fringe theory, although some dissents relied on it.) The equal protection clause is of no help concerning a right to privacy. Alito, like most justices on the court, struggles to define the limits of “liberty” that the due process clause protects. In a 2015 interview he said,
So the jurisprudential question is what limits the definition – how do we determine what liberty in the 14th Amendment means? Liberty means different things to different people. For libertarians, for classical liberals, it does include the protection of economic rights and property rights. For progressive social democrats, it includes the protection, a right to liberty means freedom from want, etc., etc. Government benefits.
And there are many other conceptions. The Court’s conception, I said in this opinion and I believe to be true, is a very postmodern idea; it’s the freedom to define your understanding of the meaning of life. Your – it’s the right to self-expression. So if all of this is on the table now, where are the legal limits on it? …
The Court had tried to limit this in some earlier cases from the Rehnquist era, prominently a case called Glucksberg that involved the claim that there was a constitutional right to die, by saying that liberty protects those rights that are deeply rooted in the traditions of the country. So you had to find a strong historical pedigree for this right.
But the Obergefell decision threw that out, did not claim that there was a strong tradition of protecting the right to same-sex marriage, this would have been impossible to find. So we are at, we are at sea, I think. I don’t know what the limits of substantive liberty protection under the 14th Amendment are at this point.
He takes a backwards-looking approach and defines liberty as what has been recognized as fundamental in the past. It should be no surprise that he doesn’t consider obtaining an abortion to be such a liberty; insofar as there is a historical pedigree of a right to privacy, or to bodily autonomy, such rights did not encompass abortions. I don’t believe Justice Alito would extend to artillery or weapons of mass destruction the historical right of an individual to own a gun. I don’t think the present opinion draft is a radical departure from Alito’s previous rulings; the only radical change I see between 2015 and now is the composition of the court.
~Max
Yikes!
Translation: Alito was always insane, but now there are three more lunatics on the court. (Plus Thomas, of course.)
I agree.
I use the term “lunatics” quite literally.
So, bodily integrity isn’t a fundamental right?
I believe the Bible requires abortion in the case of a wife becoming pregnant through adultery.
There is also a passage in Exodus listing punishments for killing a person (death) or hitting a woman such that she miscarries (a fine). That seems like the authors of the Bible didn’t believe the fetus was a human, or that killing it is murder.
Jewish tradition holds that a new born is ensouled when it draws its first breath, as God ensouled Adam by breathing into his nostrils. I think the Bible supports this.
Of course, the Bible also supports keeping slaves, and beating a slave such that he dies is only murder if he dies right away. If he lingers a few days, it’s just property damage. And in several places the Jews are told to commit genocide against the Amalakites. So you might not actually want to look to the Bible for moral guidance.
But this idea that abortion has always been seen as a murder is simply a lie.
Alito would say that the Constitution doesn’t say it is a fundamental right, so even if it is a fundamental right, the U.S. Supreme Court can’t decide that it is one.
Not to mention that the body of Jewish oral law and commentary goes into depth about punishments to be dealt when for example you cause a death or damage through negligence (the example given is that you allow an ox that is drawing your cart to escape, run wild, and trample people or property). The punishment for causing a pregnant woman to miscarry is consistent with property damage, not the punishment for if the ox kills someone.
I assume she’s going to be among the first to volunteer to help meet that demand. I move she be mated with the guy who appointed her.
Margaret Atwood: prophet, not fiction-writer.
This is overbroad–the original constitution, un-amended, delineates specific areas in which the Federal government may take actions and pass laws. In some of these areas the States can also pass laws–but the document makes clear in the supremacy clause that where Federal and State laws conflict over an area of shared jurisdiction, the Federal law is always supreme. So even in the original, 1787-88 written and 1789 going into effect constitution, there were indeed situations where a Federal law could be expected to functionally nullify a State law. It was a very narrow range of areas due to the fact we were still a good 115 years away from the expansive reading of the Commerce Clause, and 75 years away from the Fourteenth Amendment, but it was still a possibility.
This is a limited reading of the Fourteenth. The Fourteenth does not simply empower the Federal government and courts to quash States denying equal protection, it also allows them to outright quash State attempts to infringe on core constitutional rights.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
That’s right there in the text of the 14th Amendment. There is also ample evidence how this amendment was intended to be used–the Radical Republicans who saw to it being passed distrusted and loathed the racist State governments they were bringing back into the fold, they specifically crafted this amendment to stymie and undermine them. It largely failed for almost 100 years for a couple reasons.
The Supreme Court was fairly unfriendly, for political reasons, to the 14th Amendment. Much of constitutional jurisprudence has afforded this far more importance than is worthy. Originalism is very en vogue now, to the point that even jurists like Elena Kagan frequently rely on some level of originalist argument. Under originalism, it must be understood that the Fourteenth Amendment was intended for exactly what the Radical Republicans who forced it through said it was intended for–the quash states abridging the rights of American citizens, specifically in their mind they were thinking of black citizens, but the wording applies to all.
The other significant reason the Fourteenth largely failed for so long is executive powers that the President and his various departments could have used to rein in violations of laws intending to protect American citizens from having their rights infringed, were largely left unenforced for political reasons after the 1870s due to politicking done to normalize the political relationship with the Southern states.
None of that is constitutional evidence of anything, other than a long history of people putting political interests above the constitution and the law.
Just…wow:
Justice Clarence Thomas said people must “live with outcomes we don’t agree with” or the judiciary would be threatened, citing recent Supreme Court events as “one symptom of that.”
While speaking to judges and lawyers at the 11th Circuit Judicial Conference in Atlanta on Friday, Thomas said he was growing concerned about declining respect for governmental institutions and the rule of law.
That coming from a guy whose wife worked to overthrow the last election.
I would agree that there is hypocrisy if Clarence Thomas said that the election was stolen. However, I take his comment as gently disagreeing with his wife. Maybe I’m being too generous, but I don’t believe I should be held responsible in the extremely unlikely event my wife becomes a Trumper.
Currently, the company fires them with no repercussions. Most of the drug consumption behind positive drug test results happened on the employee’s personal time, but they get fired anyway. (Legalization of pot is making this more complicated, but still common). And aren’t companies in states without laws prohibiting firing people for legal off-duty conduct now firing people for smoking on their personal time? I’m assuming this has been taken to the Supreme Court & they ruled in favor of the companies.
I don’t think he’s disagreeing with his wife at all, I think he’s more saying people need to live with controversial SCOTUS decisions they don’t agree with. I actually don’t disagree in principle, if “live with” is code for “contest those decisions using all legal and constitutional means.” I certainly don’t think people should threaten the justices with violence or have a riot outside the Supreme Court building.
The group most likely to be motivated by this ruling is young people. They’ve never known a world without legal abortion so this might be such a shock it will bring them to the polls. Which is one of the arguments for the leaker being a liberal. Younger voters are not happy with what Democrats have achieved and are threatening to stay home if college loans aren’t forgiven. But the end of abortion pushes college loans into the shadows and clarifies for young people the danger of not voting in November. Whether it’s an effective in getting them to the polls remains to be seen, but if Democrats promote it properly it could work.
I would tend to agree with Justice Thomas that there is indeed a declining respect for the rule of law. However, I would venture to guess that he and I have differing views regarding exactly who is exhibiting the most disrespect.
As for “governmental institutions,” I would counter that one’s level of respect for these institutions should be commensurate to the actions and attitudes of the individuals holding positions within these institutions.
In other words, don’t expect me to respect horrible people who happen to be Supreme Court Justices, or members of Congress, or Presidents, just because they are those things.
Want to bet? That didn’t come out of a vacuum.
And you know what else is on their radar? Yep, making Christianity the state religion, along with specifically stating that the state courts are not required to accept the rulings of federal courts nor are the states required to follow the federal constitution’s First Amendment.
You, as I do, might wish none of this nonsense is on the Republicans’ radar, but it’s always a Republican in office trying to legislate the country back into the bad old days. Yes, it’s on their radar and it’s more than just a blip.