It is worth noting that there is no “end” where the people restricting these rights stop and decide they have achieved all their goals, there is nothing left to be done.
The election is in November. The Supreme Court schedule means the ruling has to come this month or next. So pushing this into the news earlier doesn’t make sense to me from a progressive political standpoint. Then, I don’t think overturning Roe will help the Democrats once low information voters realize the ending of Roe didn’t stop the great majority of purple state abortions. And if the leaker is a strong progressive, they probably would disagree with my centrist analysis.
Putin’s hackers would have a bit more of a motive — take the U.S. political focus off Ukraine — although it’s a very long shot that his cyber warriors have the needed skills.
In past leaks, I don’t think the motive was always political. Maybe a friend of a friend of a reporter asked for a draft opinion, and some helpful person did it just because they like to help.
Alito’s opinion quoted a 17th century judge who presided over witch trials and claimed that husbands can’t rape their wives.
https://talkingpointsmemo.com/news/draft-roe-quotes-witch-trial-judge-long-discredited-rape
Something worth noting about the current purported “originalists” is several of them seem to have at least some meandering philosophical acceptance of at least the “idea” of State nullification of Federal laws. None have explicitly ruled such a thing in their jurisprudence, but several have made off-hand references that at least show a sympathy to the idea.
Let it be clear–there is no originalist reading of our constitution where that would be remotely logical or kosher. The men who drafted the constitution were very clear that in the areas where the Federal government was allowed to legislate, it always trumped the States. Now, sure, there is some truth to the idea that the constitution in its original form did not really clarify what happens when the Federal government steps outside that remit. Our modern answer is “well, the States would sue the Federal government, and if their argument held sway, the overstepping law would be struck down as unconstitutional.” That is how it works today, but it’s less clear how these disputes were intended to be resolved when the document was written in 1787.
While there is some generalized conception of judicial review inherent in our common law system going back to 17th century England there were English judges even back in the early 17th century who would rule against the actions of one of the King’s functionaries as being inconsistent with the law and invalid, essentially applying a form of judicial review to government action–and these judicial rulings were typically respected. Note that the King also is the one back then who appointed all of the judges, so in general they didn’t rule against him, but sometimes they actually did.
Now, because of Parliamentary supremacy in England and later the Kingdom of Great Britain, there wasn’t much legal history for the colonists to go on in terms of a court saying an act of Parliament was illegal, but there was the genesis of the idea that judges could rule that government actions were illegal.
There’s at least some argument to be had that the imagined way such unconstitutional congressional laws would be blocked would actually be through the President’s veto. In fact George Washington’s first veto, and I believe a majority of his vetoes, were actually on legal/constitutional grounds, in that he thought the legislation was not constitutional. It appears there was at least some belief that the President would be above any sort of partisan fray, and would generally hold to upholding and protecting the constitution. This was true for maybe the eight years of Washington’s Presidency, but even that of course is only a quasi-truth, Washington intentionally remained non-partisan, but he was closely aligned with Hamilton’s faction and acted in concert with them in most areas of governing. His immediate successor Adams was more openly associated with the Federalist party and every President since has been explicitly partisan, and has generally only vetoed laws that they disagreed with politically.
In 1803 in Marbury v Madison John Marshall essentially staked out the broad power of judicial review for the Supreme Court, that we still observe today. However even that is a bit of a misunderstanding of history. While Marshall established the power, it immediately fell into disuse. For roughly the first fifty years of our history as a country this judicial power was largely never used again, only becoming more relevant in controversial slavery decisions in the run up to the Civil War. For most of that span of history it really seems that “forbearance” was the main limitation of the Congress passing laws that improperly passed beyond Congress’s constitutional remit.
During this time of course we had a dispute over tariffs in South Carolina, and you had figures like John Calhoun loudly arguing that South Carolina had full sovereign rights to nullify those tariffs. He had as philosophical support some earlier letters and writings of none other than Thomas Jefferson. However, note–while called a founding father, Jefferson’s hand is not in the constitution. He was minister to France while it was written, and he had absolutely no influence on its text or ratification.
Figures like James Wilson of Pennsylvania, Alexander Hamilton (NY), Charles Pinkney (SC), Edmund Randolph (VA), and James Madison (VA) were some of the main influences of the legal design and philosophical intent of the constitution. [Randolph was one of the few present who ended up not endorsing or signing the constitution, but his critiques of it and horse-trading in its drafting had a major influence on the document.] Popular national figures in attendance such as Washington and Franklin did not have a major influence on the text, but they were often key figures in making sure compromises got done and that the attendees stayed committed to the task. It has often been said that it is fortunate that Jefferson and Adams were out of the country during this convention as both had radical views (in different ways) that would have likely derailed the convention or altered the constitution potentially for the worse. Jefferson immediately expressed a distaste for the written constitution, calling the President a “king in all but name”, and several other elements of the document. Sitting at home in Monticello years later he may have philosophized about State nullification–but his opinion is not relevant to the original intent of the constitution because he had no hand in its drafting.
Okay, sure they’re thinking about banning abortions and interracial marriages and freedom of religion. And they’ve been working against freedom of the press and freedom of speech and voting for years. And they’re okay with sexual harassment and rape. And they legalized torture. And there’s talk about reinstituting slavery.
But the Republicans are still firmly opposed to cannibalism. So it’s okay to vote for them, right?
Oh - so THIS is going to be the thing that motivates them? I hope you are right, but I doubt it.
I do too, but Democrats are masters at misjudging what issues matter to people so this logic fits their pattern. And it has, at least temporarily, distracted from school loan forgiveness which was heating up.
But don’t you know? The World’s Greatest Constitutional Expert (just ask him), the guy who has appointed one-third of the current court, declared five years ago that the 14th Amendment was unconstitutional.
I am quite capable of being outrages at both Russia and it’s lickspittles the Republican party at the same time.
So are you saying that stare decisis is cultural appropriation?
Oddly enough, for a long time there actually were laws against condoms even though they were used by men to avoid the responsibility of making a woman pregnant. And even after those laws were relaxed somewhat, for decades longer condoms had to be sold with the famous disclaimer “for the prevention of disease only”. Apparently any form of birth control or consequence-free sex was seen as inherently immoral.
I always like John Oliver’s show. His episode this week is on topic for this thread:
Alito will never declare there is no right to private property because his ideology is very pro-private property. Personal privacy being a different matter, because the party of Small Government is actually very pro-interference in the life of a citizen when it comes to sex, gender expression, who you can and can’t marry, whether or not you can end that marriage if it goes sour, in other words, anti-personal privacy.
Yeah, so much for “states’ rights” - only those rights the Republicans approve of, that is, otherwise they’re all for stepping on states’ rights with Federal laws.
What next, fugitive women laws, bounty hunters seeking Texas women vacationing in New York or California? Border checks at states where women crossing the state line have to submit to pregnancy checks and if that’s positive they are physically barred from leaving the state? Or just selective enforcement, dragging “undesirable” or poor women into court and bankruptcy while leaving the women of the powerful and upper class untouched?
The women supporting this will never understand that they are voting for a second-class status for themselves until it actually happens, and maybe not even then.
Eventually, yes. First the women and their privacy and right to travel, then eventually the men. It’s all about power over people.
Yeah. As I said in another thread, states rights is not actually about states rights, it’s just cover for “you can’t tell us what to do.” The minute they have the power to impose their will, states rights is out the window.
Well, yes - there’s such a shortage of children that Barrett had to go to Haiti to obtain a couple of them to adopt! Clearly we need to up US manufacture of adoptable babies. [/sarcasm]
It’s disgusting - mentioning “market demands” in reference to people reduces human beings to commodity and property. Disgusting.
Apparently not. Not if you’re a woman. Down the line, probably not for anyone.
One of the greatest jurists of all time and a major proponent of the rule of law and civil liberties.
Almost all the seminal constitutional law cases are of judges ruling against the King. Case of Proclamations., Dr Bonhom’s case
Not Hampden (Ship Money) though.
How would a state’s restrictions against travel for abortions withstand challenge under the Commerce Clause?
Depends. Who’s on the supreme court?
Is my uterus not my property?