No, then it would be called my-terus.
More seriously, this article says no: Every corpse has a legal value of zero, but transplantable organs and tissues grow more valuable every day. Body parts aren’t legal property to the people born with them, but can be distributed by doctors, universities, biotech companies, and procurement agencies for profit or otherwise.
This also discusses it, I believe (I couldn’t parse much of it-I’m not versed in this type of language. Or I’m just not that bright.
It has bigger issues to overcome than the Commerce Clause. The Salmon Chase era Supreme Court actually ruled that there is an innate right to travel, that doesn’t rely on the commerce clause or anything else but is just a fundamental right of being an American. The lower court and one of the dissenters in that case actually made arguments on commerce clause jurisprudence, the majority rejected that argument explicitly (the Chief Justice was in the minority–Chase was generally not a very friendly Chief Justice to individual rights.)
The case in question was Crandall v. Nevada (1868), and it involved a Nevada law that basically levied a $1 tax on anyone leaving the state. It was specifically levied on operators of transportation companies. So if you ran a stage coach or rail line, you were required to log numbers on how many people you had moved out of the State in a month, send that data to the State, along with the required $1 per head. The court held this was an impermissible restraint on the individual right to travel around the United States at will, and that it could not survive on regulatory claims or even the fact that the law did not directly stop a person’s movement, but just made the owner of the vehicle they were traveling on pay a tax per head.
Part of their reasoning was that the constitution envisions that people would have a right to redress and petition their government, whose seat is in Washington, and that assumes an innate right to travel around the country.
One of the dissenters would have agreed to striking the law down, but only if it was on a limited commerce clause basis–the majority did not accept that opinion.
That’s not 100% accurate. A body and its parts belong to the next-of-kin. That article talks specifically about if the next-of-kin decide to donate the organs. THEN they lose property right to the organs.
Ah, thank you. I should have read more closely.
But hasn’t the leaked ruling shown that all it would take is for Alito to say “nope, the Salmon Chase Court made a mistake, they should never have ruled that there is an innate right to travel” and for four justices to agree with him, and boom, that right is gone with the wind?
Yet during the Great Depression iirc California tried to forbid unemployed from entering the state.
Absolutely–that is how precedent works, it is intended to be respected but it isn’t strictly binding in any sense. Obviously, I would say we have a serious constitutional issue if any collection of five justices could really look at the plain text of our original constitution, and the various opinions of our Founding Fathers (which I don’t reference out of reverence–I’m trying to deconstruct these jurists arguments based on the sort of originalist thinking they claim to hold dear), and determine we did not possess an innate right to travel.
This is overbroad–the original constitution, un-amended, delineates specific areas in which the Federal government may take actions and pass laws.
My point was that the Fourth and Fifth Amendments are not self-executing with respect to state laws. True, there is the supremacy clause but I am not aware of that being used in conjunction with the Fourth or Fifth Amendments without a go-between (i.e. the Fourteenth Amendment, section 5).
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;
To my knowledge, the court has held that the privileges or immunities of citizens of the United States refers to those civil rights which are enumerated in the federal constitution, federal statutes, or treaties. Specifically those rights which exist due to U.S. citizenship. Examples from the Slaughter House Cases,
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;
To my knowledge, the court has held that the privileges or immunities of citizens of the United States refers to those civil rights which are enumerated in the federal constitution, federal statutes, or treaties. Specifically those rights which exist due to U.S. citizenship. Examples from the Slaughter House Cases,
But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws. […]
[…] the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ […]
Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. […] The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus , are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations […] One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth […]
~Max
I mean, you’re saying if the court chooses to ignore its many precedents on protecting rights that are not clearly enumerated, right? Yes, under the hypothetical framework Alito is setting us on, the Fourteenth Amendment and protection of most core constitutional rights from State infringement would be gutted. But I think we agree that we aren’t actually there…at least quite yet.
There is a mountain of cases where the Supreme Court protects unenumerated rights. One of the most important is the right to property, which is not enumerated anywhere in the constitution, but even this court has staked out broad Federal protections for within the last few years–see 2019’s Knick v Township of Scott, Pennsylvania. The problem with what I will call the “purported” principal that the courts can’t or shouldn’t protect unenumerated rights is obviously the courts have never agreed, and in areas like right to travel, right to property, and obviously right to privacy they have consistently found broadly expansive readings of those rights when the need presented itself.
When people like Alito pretend that we don’t protect unenumerated rights, the cherished conservative right to property is never actually discussed because the many ways in which the court (often conservative courts) has taken expansive readings of constitutional text to flesh out the right to property (which is never explicitly enumerated) from “penumbras” is almost countless at this point.
I am less than a scholar when it comes to constitutional matters. And clearly, even scholars can disagree.
But what’s being left unsaid here and elsewhere is that nothing prevents the SCOTUS from simply ignoring what the Constitution says.
Say (just for example) Texas passes a law that says no newspaper may publish an article that is critical of the Governor - a blatant violation of the First Amendment. If five Justices decide, “Nope, nothing wrong with that law,” what can be done about it?
We all know what the the Court is supposed to do. But what government entities are supposed to do and what they actually do are not always in alignment. Do we trust that Alito, Thomas, Gorsuch, Kavanaugh, and Barrett possess the collective integrity to avoid such a situation? I’m not sure I do.
This is accurate but it’s worth remembering that Article III of the constitution actually specifies very little about how the courts can and will operate, and if the Supreme Court went literally crazy it is unlikely the political elements of our government system would stand for it. When it comes to ignoring the Supreme Court, Andrew Jackson is often referenced as he’s a common boogeyman these days. But a much better example is Lincoln, during the heat of the civil war several Supreme Court rulings went against his actions in ways that he believed would hurt the war effort. He simply ignored the rulings and did what he wanted in any case. While the Supreme Court has a lot of norms-based power, a big trump card the President has is the Supreme Court doesn’t control any army or even any law enforcement that can directly impede a President’s actions. The structure and duties of the Supreme Court outside of its original jurisdiction is also subject to statute, not the constitution, so Congress could just yank away much of the Supreme Court’s authority by simple legislation.
Now this would require a Congress and President united in a desire to do this–which our divided political system has not created. But the Supreme Court also isn’t out in what I’d call “crazy land”, they certainly are making what I think are shitty rulings, but they are at least inside the political discourse and expectations of at least parts of society. There has been a very public legal movement to overturn Roe v. Wade for 50 years, and people supporting that have very consistently won elections. So a court actually doing that isn’t crazy out of bounds.
But if Alito wanted to rule that Biden had no power to do anything and it was all vested in say, a hypothetical Republican Speaker of the House, or some other crazy thing–yeah that would very likely be the end of the Supreme Court in its present form. It would also likely be a civil war scale constitutional crisis, and where that goes is hard to say.
Ay, there’s the rub.
Should the Republicans take control of the House, Senate, and White House by 2024 (not that big a stretch), I would posit that such a government would not only stand for “crazy” SCOTUS rulings, but welcome them.
And we could expect voter suppression to become codified to an extent to keep minority rule in place indefinitely, making reversals by future courts less likely.
I realize this sounds very “Chicken Little” of me, but I’m convinced it’s all quite possible. (Though I also realize I also may be straying afield of the thread topic; please forgive me and carry on.)
It could order the President in on contempt charges. SCOTUS did that once with a county sheriff. Question is, who would actually bring him in? Does SCOTUS have baliffs?
There is a lot of evidence that SCOTUS can’t do that, and even more that no law enforcement body can place the President under arrest. The President is the font of executive power, so it would be technically difficult to use any element of the executive to take him into custody. There was a similar problem with the English monarchy back when its Kings were still active participants in politics, and in many ways Hamilton who was a big advocate for the American Presidential office had in mind an office modeled on the British monarchy except a lot of the “royal prerogatives”, that by Hamilton’s time had fallen to being executed by the Prime Minister, would be retained by the President.
FWIW the time it got real ugly the way Parliament solved it was they just basically passed a law saying “regardless of the fact Charles is King, we are appointing a special Parliamentary commission to put him on trial, empowered to execute him if convicted.” Which they did and he was. This was because the real resolution was based on the fact that Oliver Cromwell’s armies had defeated Charles’s armies and put him under arrest, note that the men still alive who participated in that were all mostly punished by Charles II when he was restored to the throne. So the old saying that if you take a shot at the King, you better kill him–even if you kill him you still might have to contend with his heirs some day.
You would likely need a loyal military force to arrest the President. The safety valve for this is impeachment would take care of the President and if the Congress did not see fit to impeach, then pursuing criminal charges would probably be unwise and infeasible.
Do what exactly? It could try him for contempt like what happened to Clinton. Or did you mean SCOTUS could charge him but can’t arrest him?
Ultimately whether by impeachment or if a direct arrest was permitted on paper it would still require whoever had some power to reign in a president to view that responsibility as legitimate. And if the charge was a president ignoring constitutional law as interpreted by a scotus that was viewed as illegitimate, congress, a marshal, the military etc. could also refuse to carry it out
On impeachment of course we’re already at the point (if we ever weren’t) where simply defying the scotus isn’t going to get the president removed unless in some extreme scenario.
Oliver is full of shit. That Don’t Say Gay law? Not Governor DeSantis’s fault, nope. 
Not the Florida State Legislatures fault, nope. Note the homophobic morons who sponsored and wrote the bills, nope, not them. It was Disney’s fault. Yes, his piece on that bad law went on and on and on about the fact the Disney had donated to those politicians, thus, the bill was Disney’s fault. The fact the Disney is one of HBO’s rivals is beside the point. of course.
Cite?
IIRC they dug up Cromwell’s corpse, hung him for regicide and then had him beheaded. (really)
/hijack
That was more “Los Angeles” than “California.” In 1936 LAPD set up roadblocks to try to keep Okies out. But it was more of a “Go to Fresno instead” demand rather than a blockade.
This is their goal, they don’t hide it. They structured the court for that sole purpose. They denied Obama his nomination, for which I will never forgive any Republican. They’ve put clowns on the court to create the crazy rulings.
Not at all, it just sounds aware and sane.