Of course you do.

I'm sure there is another occupation that he is even more widely known for....

..

Do they also wear tight leather and chains in your mind?

To me "originalism" and the intent of the Framers is useful when we want to understand what the words and phrases of the Constitution mean and were intended to mean. That's why so many scholars pour over original sources like the notes of the constitutional convention and the Federalist Papers.

But what Jefferson said 30 years later while he was playing oracle back at Monticello was just his opinion.

What the nay sayer, Patrick Henry thought is just what he thought.

When you get down to the nub of it the document is so remarkably ambiguous that those looking for a definitive road map for 21st century democracy will be disappointed.

The "new originalists" have ignored the intended ambiguity of the document and have pretended that "abortion" since not specifically mentioned in the Constitution or the Bill of Rights is not a protected privacy right.

This argument is an insult to the our intelligence. The justices who so argue citing the Framers original intent disingenuously ignore the 9th amendment which reserves, to the people, rights which are not enumerated in the Constitution or the other Bills of Rights.

This twisted, insincere argument hints that the justices think we are too stupid to understand Constitutional law and can't recognize that they have cherry picked an argument.

The right to privacy isn't just an idea. When it comes down it no state would dare invade our lives so as to tell us we can't turn down that last hopeless round of chemo and radiation. . .or tell us it isn't time to honor pawpaw's living will and turn of life support. . .or tell us that we just have to let go of our suffering cancer riddled preschooler.

They could easily argue that the 10th Amendment reserves the power to regulate abortion (among other powers "not delegated to the United States by the Constitution") to the States.

Originalism is what Scalia used when it suited him. He ignored it when it didn't.

Alito is using it the same way.

This is the dirty secret of the Constitution. It doesn't really mean much of anything. It's just a mechanism for lending reflected legitimacy to the cultural assumptions of whoever dominates the SC. It's the modern equivalent of the priests interpreting the will of the Gods. The moment significant numbers of people realise that, the Emperor is going to need a new set of clothes.

Yes it would, but the election matters, the polls don't. You can take all the polls you want regarding Roe v. Wade, but people will be voting for Representatives and Senators, and most people aren't single-issue voters. Millions of pro-choice people may still vote for anti-choice candidates for other reasons. Millions of people who respond to polls with pro-choice answers may not show up to vote at all.

You can take all the goddamn polls you want, BUT ALL THAT MATTERS IS WHO ACTUALLY VOTES AND WHO THEY VOTE FOR! Period!

You also have a whole bunch of systematic polling biases. Some sections of the population are harder to reach, some don't want to answer polls, some don't want to answer honestly. If you look into the methods of lots of polls, there is often a heck of a lot of subjective decision making involved in turning the raw data into something that genuinely reflects the population. Just because all the polls say mostly the same thing, doesn't mean they are right. Are they that great at predicting election percentages?

Originalism is the compromise of the generous absolutist: it's only relatively relative.

Within their margin of error, taken in aggregate, yeah they're actually pretty damn good at predicting who will win an election. Which is what they're intended to do.

Well, actually, if you want to adopt that position then you have to ask who gets to vote and who for. As a result of gerrymandering and other sleazy tactics, the vast majority of House districts are locked to one party or the other. State legislatures are even more rigidly divided. Some states have aggressively made it harder to vote, particularly for people who wouldn't be likely to vote for Repubs. 50 senators from the smallest states represent almost 50 million fewer Americans than the 50 from the bigger states. The Supreme Court is profoundly and smugly anti-democratic. If elections could get the majority what we want, we would have universal health care, tough gun laws, legal abortion, and higher taxes on the rich. And Al Gore and Hillary Clinton would have been President.

So a state has the power to violate the privacy of a woman seeking an abortion? It seems to me that the court's decision on NY gun laws means the protections of the Bill of Rights extend to state actions. Is the court saying the state can't stop you from carrying a gun but it can violate the privacy of women and families seeking abortions?

But the real question might end up being whether the Congress via the Supremacy Clause has the authority to preempt state laws that conflict with any federal law protecting abortion rights.

You know. . .wave a magic wand over abortions (really health care in general). . .call it commerce and start dictating to the states.

This wasn't really in doubt from the 1820s until the 1970s.

This has been true since Gitlow v. New York (1925), but only for selected rights.

Yes.

If that question arises, I do not expect it will be because the Dems had the wherewithal to codify something like Casey or Roe. Instead, it will be because the GOP managed to pass a federal ban.

Thanks for the replies, d4m10n.

The practical application of how the Bill of Rights are made or not made applicable to the states baffles a lot of people.

In this case the idea that Kentucky woman has to cross the Ohio river to Illinois to get a safe and legal abortion sounds like a Dred Scott thing to a lot of people.

Not a bad analogy, IMO.

In both cases, SCOTUS had the chance to advance human rights, and in both cases they went with narrow originalism instead.

I was actually thinking that some 50/50 states might pass the 15 week ban. Enough democrats will think it's some kind of gain over the likely nothing, if the governor is Republican. Governorships here in the little states are just bought. All you need is ads on Fox TV a few months all day. My governor included. He has no skills at all, completely dependent on staff and a grasp of Trumpism.

One theory (which I understand is not supported in case law) is that the 14th amendment extends the first 8 amendments to all U.S. citizens.

But this theory doesn't extend unenumerated 9 amendment rights or penumbral (see Roe) rights to citizens.

A few maps of how things are playing out in the states:

https://www.medpagetoday.com/special...clusives/99466

https://www.theguardian.com/us-news/...in-every-state

https://www.washingtonpost.com/polit...alization-roe/

Kansas is of particular interest to me, since they will be holding a popular referendum vote in early August to allow the legislature to ban abortions going forward. It will be fascinating to see if the people are going to willingly hand over bodily autonomy, or if there is a significant gap between the rulers and the ruled.

Several other states where abortion is currently available seem likely to implement bans in coming months; I fully expect one will be able to travel from Savannah, Georgia to Priest Lake, Idaho without once stepping foot in a state which allows abortion after six weeks.

Why would one expect a conservative court to advance a progressive project?

No reason comes to mind, but on rare occasions originalism does lead to surprising results in favor of marginalized people, e.g. McGirt v. Oklahoma.

I could see a hyperliteralist conservative making a 13th Amendment case against forcing birthing women into involuntary servitude to fetal persons.

Why do you automatically categorize "human rights" as a progressive project? Are conservatives opposed to human rights?

Because the whole Positive Rights expansion of Rights is a progressive project. The idea of improving the world by discovering more and more Rights is progressive. "Human rights" legislation requires a whole bureaucracy to administer, it is intrinsically big government. The idea of using big government and armies of bureaucrats and technocrats to solve everybody's problems is a progressive vision.

An interesting premise, if flawed.

After all, we have conservatives using big government, and armies of bureaucrats to strip or even deny rights to people that were once held.

Thank you for pointing out that conservatives despise rights and freedoms.

Often, yes.

They have a different conception of them, that is all. The version in the post I was responding to was the progressive version.

While conservatives prefer to use big government in order to make the lives of everybody they don't like miserable. Math checks out.

Not necessarily. (Or, at least in some cases it doesn't require more bureaucracy than the alternative.)

If you grant women reproductive freedom/abortion rights, you don't necessarily NEED any more government worker (since women will be interacting with their doctors on a one-to-one basis.) The only time you might need the government involved is if/when the costs need to be covered under a publicly funded health system.

On the other hand, outlawing abortion requires: More police to enforce the laws, courts to prosecute women who dare to actually control their bodies, prisons (or other government mechanisms) to execute any judgements against them.

Of those 2 cases, which do you think requires "big government"?

I hear talk of impeaching the SC justices for "lying" about their intentions over Roe vs Wade when questioned.

As a matter of curiosity, were any of them asked directly if they would overturn Roe vs Wade if a case came before them?

I suspect their answer would be the same... "I cannot comment on a hypothetical case" (or words to that effect)

Of course, they were asked about Roe v. Wade and they all claimed it was "settled". Now, the MAGAchud will try to justify things by playing some sort of word game, like "settled means it was decided at the time, not that it couldn't change in the future". We all know it was bunk though.

What bunk. If a right is recognized in a society, there is (nominally) no administrative burden. It is when a right is curtailed that an enforcement burden necessarily arises.

When abortion was allowed, women made for themselves a decision unfettered by the State. Now that this right has been clawed back, with legal consequences, the State must expend resources to enforce this new law.

And what's this 'discovering' rights thing? It's really striving for more freedom. You know; that "freedom" business about which Americans crow so vociferously.

State gov't antiabortion bureaucracies are just getting started, we can only guess how "big government" they are going to get. Personally, I'm betting on mifepristone and misoprostol becoming the new battlegrounds in the longstanding "big government" war on drugs, along w/ DAs going after women for self-administering said drugs.

Get ready for the Miscarriage Police! There is not really an effective way to tell an early-term medical abortion from an early-term miscarriage. So, if someone shows up in a pro-life state with a “miscarriage” how do you tell if it a tragedy or a felony? A thorough background check! Did the woman tell any family members she was trying to have a baby? Has the woman purchased birth control recently? We definitely need to see her internet search history and phone records…

That is a real concern.
https://www.washingtonpost.com/outlo...-roe-abortion/
https://www.washingtonpost.com/opini...-miscarriages/

Sadly I believe this is what the Founders wanted.

Each state decides healthcare on their own. If they want to be a state of schmucks, thats their choice.

Only way around this is a Constitutional amendment allowing abortion until viability outside the womb.

Its not just a "healthcare" issue, its also a personal privacy issue.

Let's take a closer look at this, shall we.

The thread and question is about a single human right, the right to make decisions about managing a pregnancy with one's medical provider. Roe v Wade granted that human right, the current SCOTUS took it away.

Instead of discussing that single denial of a human right you build a straw man argument claiming the thread is about multiple human rights, some of which are more progressive than others. Thus you claim the fight to take this one established human right is a Progressive fight (the highlighted sentence).

This thread is not about "the whole positive rights expansion."


As for the separate issue you included: "legislation requires a whole bureaucracy to administer, it is intrinsically big government. The idea of using big government and armies of bureaucrats and technocrats to solve everybody's problems is a progressive vision", that is an ironic joke. Enforcing abortion restrictions and bans in the states now tasked with the actions is already turning into a nightmare. In TX at least one prosecutor is refusing to prosecute anyone who violates TX's abortion ban.

People are wondering how the police in any state are going to look for ban violations. Talk includes monitoring people's phone aps where they track their menses. If you seek post-miscarriage medical care you might be subject to an intrusive investigation and even being charged with inducing the pregnancy loss. You can't get more "big government" than that.

Are you aware that the % of pregnancies which end in a natural miscarriage is over 10-15% in the first trimester?

Are you listening to/reading any of this?

Right now you need 2/3 vote in both Houses. That won't happen under current conditions.

As for claiming they changed their minds, one could present their history of saying they wanted to overturn Roe. I don't think the Senate investigated seriously the last 3 justices for their anti-Roe views. The Democrats followed tradition of voting to install the SCOTUS regardless of who appointed them. Yes they balked at Bork, and maybe there were others I'm forgetting. It's moot now unless impeachment becomes a serious option.

Well, back in the founder's day, bloodletting was still a thing, so I am comfortable with ignoring their opinions on medical care...

Bork is the one that people remember, but others have failed to get the nod over the centuries for various reasons. Bork is the most recent one to get outright rejected however, as they didn't vote on Garland and Meirs withdrew her nomination.

True, I suppose, but how sad it is that human rights in general are seen as an impermissible "progressive project."

It sounds like you are saying that they were never asked directly. If they were allowed to be evasive then they didn't lie.

In that case, I never ate the cookies in the kitchen as I clearly told my mum I scoffed them not ate them.

I good explanation from a source I largely trust:

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I AGREE

This kind of questioning is ex-lawyers asking other ex-lawyers questions that everybody knows are coming, and everybody knows the correct non-answers. If their questions aren't specific enough to force an answer, then that is intentional. If the answers aren't specific enough to hold them to a particular meaning, then that is intentional. Both sides know this. It is a dance. The intention of the questioning isn't to find out what the SC nominees opinions are. They already pretty much know before the questioning starts, and if it isn't obvious from the nominees record.... they are hardly likely to be fool enough to reveal something wildly informative during the questioning.

Thank you.

I mean, every single Democrat voted against the Judge Handmaiden and Judge Beer boof and all but three voted against Gorsuch, so you can't really claim that the Dems were fooled or were responsible for not holding the nominees' feet to the fire hard enough in questioning.

No. The process is just bread and circuses. It's goal is to produce soundbites where some politician or other raises their profile, or some storyline that is currently being pushed get's progressed.

How can "settled" mean anything else? No Supreme Court can ever bind a future Supreme Court. No interpretation of the law by the court can ever be settled in a way that it cannot change in the future. All Supreme Court rulings are subject to possible change in the future. And you aren't going to complain about that when a change of what was once settled favors your preferences.