While this decision certainly impacts women waaay more than men I wonder when the men will wake-up and realize they are on the hook financially for the next 18 years for most of those children they fathered? I doubt they will be thrilled about that. If there is one thing conservatives care more about than unborn babies it is the state making them pay money.
Huh, it’d be interesting if they arrested any of the protestors, and they appealed it all the way up to the SCOTUS that they are currently protesting.
Seems a pretty vagrant and self serving violation of the First Amendment.
Heh, I was wondering who would be the first one to reference that law–it immediately appeared on right wing Twitter and sites like Breitbart, which is fairly common–people do something you don’t like, find some random law that maybe makes it illegal. (These same people of course ignore the potentially dozens of laws broken by things like the January 6th coup attempt.)
I don’t really think that law would prohibit protesting outside of Alito’s house. It is very narrowly constructed textually.
It pertains specifically to either impeding the administration of justice, or “influencing … the discharge of his duty.”
Impeding or interfering with the administration of justice is pretty tightly defined, so for example if they were trying to stop a judge or juror from being able to get through the crowd to go to the courthouse to fulfill their duties in a court hearing, that would be such a situation. None of these protests really seemed to be doing that.
The other aspect is “influence” them in the discharge of their duties. That is an intent based crime. If the police arrested a bunch of people on this charge, they would have to prove that the intent was to influence Alito’s discharge of his duties. A simple explanation that the protesters were simply there to express their displeasure, as per the First Amendment, would be difficult to overcome at trial–perhaps not impossible, particularly for people in the crowd who may have published their intent elsewhere, but out of the dozens or hundreds of people doing it, I imagine only a small handful will have done so.
Anything beyond a narrow reading or a narrow enforcement would raise significant first amendment concerns.
I wonder about this too.
It’s really not that far fetched to think that there will be those who want to completely control who gets to procreate.
Also how will the states deal with surplus embryos from IVF?
The protests are organized by the neighbors.
Isn’t the whole point of any protest to “influence” opinion?
No, protests can have any number of intents.
Read again.
One person, living in that area, not next door, and The newspaper reported one man complanining about her tactics.
“That I don’t agree with. I think you vote, and you expand the court. You don’t go to a guy’s house,” the man said.
Not in Government areas. Who lives next to the Supreme Court?
Not necessarily the opinion of the people being picketed.
Spoilered for thread readability. Click to show/hide.
"The 'right to travel' discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." Saenz v. Roe, 526 U.S. 489, 500 (1999).
The second and third component above are clearly enumerated in the Constitution itself, Art. IV section 2 clause 1 (Comity clause) and Amendment XIV section 1 clause 1 (Citizenship clause), respectively. The case citations in Guest reflect this.
In support of the right of free ingress and egress, the court cites Edwards v. California, 314 U.S. 160 (1941) as reaffirmed by United States v. Guest, 383 U.S. 745 (1966). The Edwards court based its opinion on the Commerce clause.
"Article I, § 8 of the Constitution delegates to the Congress the authority to regulate interstate commerce. And it is settled beyond question that the transportation of persons is 'commerce', within the meaning of that provision. [...] [T]he prohibition embodied in § 2615 [of the Welfare and Institutions Code of California] against the 'bringing' or transportation of indigent persons into California [...] is an unconstitutional barrier to interstate commerce." Edwards v. California 314 U.S. 160, 171, 172 (1941).
Now, Justice Douglas in his concurrance relied on the Fourteenth Amendment's Privileges or Immunities clause. He makes a very eloquent argument for you, Id. p. 178 et seq. Justices Black and Murphy make a similar argument in their concurrance, but acknowledge that the privilege of interstate travel is limited in circumstances, such as when the citizen is a fugative from justice or carries a contagious disease. Id. p. 183 et seq. But these are concurrances and do not establish precedent.
The Guest court did not commit to any particular source of the right of interstate travel (privilege of citizenship versus commerce clause versus federal preemption), but held that the right does exist and is protected by federal statute.
"[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution. See Williams v. Fears, 179 U.S. 270, 274; Twining v. New Jersey, 211 U.S. 78, 97; Edwards v. California, 314 U.S. 160, 177 (concurring opinion), 181 (concurring opinion); New York v. O'Neill, 359 U.S. 1, 6-8; 12-16 (dissenting opinion). In Edwards v. California, 314 U.S. 160 [...] the Court based its reaffirmation of the federal right of interstate travel upon the Commerce Clause. This ground of decision was consistent with precedents firmly establishing that the federal commerce power surely encompasses the movement in interstate commerce of persons as well as commodities. Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203; Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 218-219; Hoke v. United States, 227 U.S. 308, 320; United States v. Hill, 248 U.S. 420, 423. It is also well settled in our decisions that the federal commerce power authorizes Congress to legislate for the protection of individuals from violations of civil rights that impinge on their free movement in interstate commerce. Mitchell v. United States, 313 U.S. 80; Henderson v. United States, 339 U.S. 816; Boynton v. Virginia, 364 U.S. 454; Atlanta Motel v. United States, 379 U.S. 241; Katzenbach v. McClung, 379 U.S. 294. Although there have been recurring differences in emphesis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists. Its explicit recognition as one of the federal rights protected by what is now 18 U.S.C. § 241 goes back at least as far as 1904. United States v. Moore, 129 F. 630, 633. We reaffirm it now." United States v. Guest, 383 U.S. 745, 758, 759 (1966).
The first set of citations is potentially relevant, as I am looking for a case where the court held that freedom of ingress and egress is a privilege of national citizenship. The relevant dicta from the Williams decision, in my interpretation, merely restates that one of the (enumerated) privileges of U.S. citizenship is that if I cross the state line into Georgia, Georgia couldn't force me to pay a tax simply because I am a citizen of Florida rather than Georgia. This privilege is enumerated in Article IV, section 2, clause 1 of the federal Constitution. Justice Harlan dissented but I could not find a written opinion from him. If there is precedent for the Court protecting a general and unenumerated individual right with the Privileges or Immunities clause, this is not it.
"On behalf of the plaintiff in error it is insisted that paragraph ten is in conflict with the Fourteenth Amendment because it restricts the right of the citizen to move from one State to another, and so abridges his privileges and immunities; [...] Undoubtedly [...] the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution." Williams v. Fears, 179 U.S. 270, 274.
The Twining court explicitly reaffirmed the Slaughter-House Cases, writing:
"Privileges and immunities of citizens of the United States, on the other hand, are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States. Slaughter House Cases, [16 Wall. 36], p.79; In re Kemmler, 136 U.S. 436, 448; Duncan v. Missouri, 152 U.S. 377, 382. Thus among the rights and privileges of National citizenship recognized by this court are the right to pass freely from State to State, Crandall v. Nevada, 6 Wall. 35; the right to petition Congress for a redress of grievances, United States v. Cruikshank, [92 U.S. 542, 551]; the right to vote for National officers, Ex parte Yarbrough, 110 U.S. 651; Wiley v. Sinkler 179 U.S. 58; the right to enter the public lands, United States v. Waddell, 112 U.S. 76; the right to be protected against violence while in the lawful custody of a United States marshal, Logan v. United States, 144 U.S. 263; and the right to inform the United States authorities of violation of its laws, In re Quarles, 158 U.S. 532." Twining v. New Jersey, 211 U.S. 78, 97 (1908).
Again Justice Harlan the great dissenter dissented, on grounds of judicial restraint as well as an expanded reading of the Privileges or Immunities and Due Process clauses of the Fourteenth Amendments that would incorporate the Bill of Rights against the States. But his dissent does not hold precedential value. It is worth noting that Twining was overturned half a century later, on due process grounds, Malloy v. Hogan, 378 U.S. 1 (1964). (Fun fact: Justice Harlan's grandson, Justice Harlan, opposed incorporation and so dissented.) Twining's reaffirmation of the Slaughter House Cases, etc, is presumably still binding precedent.
The concurring opinions in Edwards were already treated above.
Finally the O'Neill court did not directly address the question of whether the right to ingress and egress is a privilege of federal citizenship, but ruled that even if it was, it was not implicated in that particular case.
"The finding of the Florida Supreme Court that the right to ingress and egress is a privilege of national citizenship protected by the Fourteenth Amendment raises an issue that has more than once been stirred in opinions of this Court. See concurring opinions in Edwards v. California, 314 U.S. 160, 178, and 184, in connection with Crandall v. Nevada, 6 Wall. 35. However, even if broad scope be given to such a privilege, there is no violation of that privilege by the Florida statute." New York v. O'Neill, 359 U.S. 1, 7, 8. (1959).
I have already denied that Edwards or Crandall provide any binding precedent for the notion that freedom of travel, or any other general unenumerated individual right, is protected by the Privileges or Immunities clause. Justices Douglas and Black in their dissent wrote that the freedom of interstate travel "has often been called a right or privilege of national citizenship", but stopped short of endorsing that particular view as opposed to finding protection in the Commerce or Due Process clauses, Id. p. 13; in any event, the dissent does not carry precedential value.
If there is a case where a majority of the court used the Privileges or Immunities clause to protect a general individual right not enumerated in the Constitution, I have not yet read it. Not for the right to travel between states, not for the right to privacy, and certainly not for the right to obtain an abortion. There may be many reasons to disagree with Justice Alito's leaked draft opinion, but inconsistency with legal precedent on the privileges of national citizenship does not seem to be one of them.
~Max
You seem to be using the word “enumerated” to mean “rights I believe are clearly inferred”, whereas most people using that term in modern parlance mean “any right clearly stated, and no other.” The right to travel is not a clearly enumerated right, it is clearly implied–but there’s a significant number of conservatives who are not open to any rights implied at all, only rights in textual, black letter text of the constitution.
Also, FWIW–I never stated Crandall protected the right to travel under the 14th Amendment at all. I said it protected it as a right inherit to being an American, nationwide.
I don’t actually think there is a meaningful dialogue beyond that because you are using enumerated to mean something different than what I perceive the national conversation to actually be.
There is also no clearly enumerated right to marriage–which the court held did exist and specifically protected under privilege and immunities grounds in Obergefell. I would guess you would say marriage isn’t "unenumerated’, because again you seem to be using that word to mean something very different from me.
I may not be expressing myself clearly. I do not think the right to travel from one state to another is enumerated, or explicit, in the Constitution. I do think the right to travel to the seat of government is implied by the right “to petition the government for a redress of grievances”. The right to travel to the seat of government is not enumerated in the Constitution; it is an unenumerated right. The right to petition the government for a redress of grievances is enumerated in the First Amendment.
My read of the Crandall decision is that, among other things, the right to travel to the seat of government is a privilege of national citizenship within the scope of the Fourteenth Amendment’s Privileges or Immunities clause. My opinion is that the privileges of national citizenship include unenumerated individual rights such as the right to travel to the capital specifically.
I do not, however, think the general right to travel from one state to another is a privilege of national citizenship. My read of the Edwards decision is that the States are generally prohibited from regulating the ingress and egress of persons because that power is reserved for the federal Congress in Article I of the federal Constitution; not due to a conflict with any particular individual’s civil rights.
In this line of thought, while I could see some specific privacy rights as being privileges of U.S. citizenship, I do not think citizenship entails a general right to privacy, and I do not see how it could entail a specific individual right to marry someone of a different race, or to marry someone of the same sex, or to obtain contraceptives, or to undergo an abortion, &etc.
My recollection of Obergefell is that it was based on the Fourteenth Amendment’s Due Process and Equal Protection clauses. In the interview I linked above, Justice Alito was complaining on the majority’s treatment of “liberty” under the Due Process clause. I will re-read the opinion, though.
~Max
That would stand the Court’s many rulings on freedom of association on their head, unless you hold that you are free to associate with whoever you please, so long as you don’t leave the state.
Not enumerated in the Constitution. ETA: The court found that it is a “liberty” protected by the Due Process clause of the 14th Amendment, I don’t believe they based their ruling on freedom of association being a privilege of national citizenship. The case is NAACP v. Alabama, 357 U.S. 449 (1958).
~Max
Why would that matter?
In the course of connecting your post to the topic at hand I may have assumed you were implying something that you weren’t.
Notwithstanding the jurisprudence on freedom of association, I still do not think the general right of an individual to travel from one state to another is a privilege of national citizenship.
~Max
So if “enumerated” matters then what does the due process clause of the 14th amendment protect? There is no list of precisely what you can or cannot do in that clause.
Okay, something that maybe needs stating. The Due Process clause of the Fourteenth Amendment applies to all persons, and protects their “liberty” (and “property”) from arbitrary state action. Under Roe v. Wade a woman’s “liberty” to obtain an abortion was not predicated on her being a citizen; just as was the case in Griswald v. Connecticut which protects the “liberty” to purchase and use contraception; just as was the case in Lawrence v. Texas which protects the “liberty” to sodomize a consenting adult in the privacy of your home. None of the above mentioned rights are considered privileges of citizenship, they apply to all people in the country.
Justice Alito’s draft opinion construes “liberty” so as to exclude abortions. It has nothing to do with enumerated versus unenumerated.
The Privileges or Immunities clause is a separate clause in the Fourteenth Amendment which deals with privileges of U.S. citizenship, which must be either enumerated or a necessary and specific inference from something enumerated. The Privileges or Immunities clause is not relied upon in Roe or the present case; however, in post #576 Martin_Hyde appeared to appeal to that provision as encompassing a general right to privacy, and by extension the specific right to abortion.
The whole enumerated, not enumerated, privilege of citizenship or not a privilege of citizenship, that’s only relevant to what I took as Martin_Hyde’s criticism that Justice Alito’s opinion runs afoul of the Privileges or Immunities clause.
~Max
Seems to me here is the part trying to be glossed over. It is not whether the constitution “allows” abortions. It is whether a woman can have free will and autonomy which can include, but is not limited to, getting an abortion.
The term “liberty” appears in the due process clauses of both the Fifth and Fourteenth Amendments of the Constitution. As used in Constitution, liberty means freedom from arbitrary and unreasonable restraint upon an individual. Freedom from restraint refers to more than just physical restraint, but also the freedom act according to one’s own will.
Alito is covering many bases but why focus on privileges and immunities? This seems a basic human right issue applicable to everyone.
No. It is whether the federal courts can prevent a State from interfering with a woman’s personal medical decision.
By the way, my personal view on that question goes further than Justice Alito. Not only do I interpret “liberty” much more narrowly than the Supreme Court, I deny the premise that “due process” deals with anything other than legal process - timely notice, an opportunity to state your case, a neutral arbitrator, &etc.
The U.S. does not necessarily respect human rights as a matter of law. Buck v. Bell, where the Court ruled that forced sterilization was compatible with the 14th Amendment, cited by literal Nazis during their trial at Nuremberg, is still good law well, it’s not a morally good law, but it hasn’t been overruled. And it was cited in Roe v Wade as the limit of a woman’s right to privacy - IIRC, the opinion read that her right to privacy encompasses abortions before viability, but it’s not strong enough to protect her from forced sterilization. So yeah, that’s a thing.
~Max