MagsJ:
"I think the statistics for 2022 -thus far- speak for themselves.
Amendments… are a necessary par-for-the-course, for all bills and rights and legislature… they are an amendment to reflect current times, nothing more."
memo:
My lack of info that appeals exhausted, that reached the Supreme Court, or some higher court, and Congress whose only recourse may consists in amending the 2 and and the 5th Amendment
…which means?
Apparently the same line up of judges on the same day also validated a right to ensure that 18yo children are permitted to carry concealed weapons!
As far as I can discern, they believe that attempting to achieve their goals by legal democratic means would be impossible, because the US is mostly populated by rebellious types that do not want to be controlled.
Ironically, if they did believe in democracy, who knows how far they would get? Maybe very. Because their attitude towards the mayority of people is open disgust and disdain, it does not occur to them to try.
Alternatively, many people aren’t outright rebellious, but consider only God to be a true authority and no man or woman to have the right to control them.
It’s interesting that the right to keep and bear arms is the very second one it occured to them to list, preceded only by the right to free religion and speech.
Almost as if they were saying “we claim the right to think and say what we want, and the means to enforce it.”
Reading the concurring opinions and the dissent opinion is also instructive.
law.cornell.edu/supremecourt/text/20-843
The main opinion and concurring opinions consider that they are analyzing the law to understand how it applies to citizens, holding that the law exists and prevails with or without an existing government, i.e. they are laws of the people, and predate and supercede the government.
The dissent considers that the law exists as a tool of government to better regulate its people. The law is relevant insofar as and to be understood in terms of how it aids the government in achieving its interests (in this case, preventing gun violence).
The first set, of course, busy themselves with scrutinizing the text of the law and the circumstances leading to a clearer idea of their intended meaning in terms and in concepts.
The second set busy themselves with scrutinizing what they perceive to be the government interests and how they perceive they are affected by a given interpretation of the law.
It might be easy to say that the dissent is simply waving away its responsibility to uphold the law and assuming legislative functions that belong to other branches of government. But it seems to us that there is rather a deeper and fundamental difference in the perception of what the law is that accounts for the difference in approach.
The dissent, it seems to us, fundamentally thinks of human life as subject to governmental authority. This means that, in its view, as it seems to us, the law is never a code set forward by legislators and intended to represent an ordinance in themselves, but rather an attempted articulation by the government of its will for it to be better understood by the population. To rule against the letter of the law, in this view, would not be a dishonest misrepresentation or a coopting of legislative functions outside of its competence, but an honest attempt at enforcing the will of the government which is the actual substance of the law.
The arguments in the main opinion, for example, regarding the concept that the right to self defence includes the right to self defense against the government would be literally invisible to the dissent. They would not agree or disagree with it, but simply fail to recognize its existence. A right to defend against the government could not be law when the will of the government is the law.
This is relevant when considering public opinions on the political definitions of individual justices.
Many people hold that the difference between judicial philosophies applies the same way as in legislative or executive government activity. That leftist judges hold leftist views and conservative judges hold conservative views. But what this particular case shows is that the difference is rather about opinions about the role of the Supreme Court itself. What are labelled liberal judges aren’t simply going to rule in favour of liberal policies, but in favour of government interests as they perceive them and as they perceive them to be best served. What are labelled conservative judges will not simply rule in favour of conservative policies, but in favour of the law as it exists and as it can most accurately be found to be meant.
The abortion case syllabus is also interesting.
It first lays out the respondent’s appeal to rights that are not written in but can be inferred from existing constitutional rights. This is an appeal that is explicitly allowed by the letter of the constitution. In order to determine whether abortion is protected by what does constitute such a right, the court mentions ways in which this has been done for othr cases, and then sets a couple of philosophical boundaries that might also aid, and looks also simply at reasons that have been argued both in and out of court which do not anywhere in legal literature exist otherwise. Again, this last criteria is allowed by the constitution.
It concludes that, making recourse of all of these criteria, the case for a right that protects abortion is not firm enough, and not founded either in any recorded tradition. It recognizes that it was however upheld by previous decisions.
It then makes the case that these previous decisions, though they considered the appeal to a right set forward by previous petitioners or respondants to exist, did so without considering whether other existing rights were violated by abortion. That is, they considered only possible existing rights protecting abortion, but not the possibility of existing rights being violated by abortion, and because they did not consider this, their conclusion was invalid and has to be revised.
The right asserted to exist to protect abortion can be essencially summarized as the right to liberty. The right asserted as potentially violated can be summarized as the right not to be arbitrarily killed.
This is where I am so far, but my guess is they will conclude that, at the very least, the right to liberty protecting abortion cannot be said not to violate the right to life violated by it, and thus a right to abortion cannot be protected by the constitution.
We found this quote as humorous as the subject of the case allows:
Of course, if the potential right of a human being not to be arbitrarily exterminated wasn’t being potentially threatened, a search for one’s concept of existence would be fine and not anybody’s problem. When the possibility of the arbitrary extermination of a human being exists, some severity in definitions of terms and justifications for rights becomes necessary.
It is not as simple as the right or not to liberty. It is a question of the right or not to liberty in the context of a human life being potentially arbitrarily exterminated as a result.
Respondents will have to prove not only that the right to liberty exists, but that the right to not be arbitrarily exterminated does not. If they fail, it does not render abortion unconstitutional, but it prevents the Supreme Court from asserting constitutional protection for it.
Ancient Rome famously included the right of a father to kill his son. The right to filiocide is not unprecedented.
In the case of a mother aborting a child, it carries the additional consideration that the child cannot survive except inside of and to great effect on the mother’s system.
It is, nonetheless, still clearly filiocide.
Due to the above considerations, the legal precedent and the specific circumstances pertaining to the mother’s body, I cannot assert that filiocide, and specifically abortion, has no legal legs to stand on. I can, however, assert that if abortion is made legal, it is the case also that filiocide is legal.
The question is not regarding the right to liberty, but the right to filiocide.
Because of the circumstances of abortive filiocide and the historic precedent, I accept that it is a debate which it is possible to have. Because it does inevitably involve the killing of a person, I cannot accept that it can be protected as a component of the right to liberty. It would have to be claimed as a right to filiocide.
At the very least, such a debate should include the question of a father’s right to kill the mother of a child that killed that child without his acquiescence, even if the child cannot survive outside the mother’s body.
Again, though, that would fall outside the scope of the constitutional guarantee of a right to abort a child as a component of the right to liberty.
This quote is interesting, because now they are directly addressing what I was saying before about the difference in conception of what law is and what the role of the Supreme Court is:
In effect, the liberal court was busy in Roe attempting to determine where government intrest lies and how it can best be served, while the conservative court is busy trying to understand exactly what the law says, how it is meant, and how it is violated or not.
In assuming legislative functions, the liberal court saw itself as fulfilling its duty.
And, of course, we are aware of the old complaint that leaving such decisions to the appropriate legislative channels runs into a population that is too retrograde to make necessary changes.
But this is not an argument against conservative politics, it is an argument against democracy.
For any future process of congressional vetting of a presidential nominee for the Supreme Court, we believe the following would be a mandatory question for any republican representative to ask:
What is your opinion on the role of the Supreme Court as regards the law, and specifically the constitution?
They should not ask this question without a healthy background check revealing previous pronouncements of the nominee on the point.
The politics of “states rights”:
Bret Stephens at the NYT
‘In the gun decision, the court is denying New York State the normal democratic right to decide for itself how it should go about ensuring domestic tranquility, which is the basic function of government. In the Mississippi abortion case, the court is doing something closer to the opposite: giving a state government the unfettered ability to erase an individual right that, until last Friday, had been upheld by the court for nearly five decades.’
If the state passes laws the Supremes agree with, empower the states all the more. If the state passes laws the Supremes disagree with make those laws unconstitutional.
Then pretend that it’s all about the Constitution and not about your own moral and political prejudices. Or in regard to this case – “Supreme Court Sides With Coach Over Prayers on 50-Yard Line” – your own religious prejudices.
Ensuring domestic tranquility is a government interest that would not supercede the US constitution. Any measures a state takes to ensure tranquility must do so without violating constitutionally guaranteed rights.
I am sure many states would also like to be able to not require warrants for searches, and would feel it would greatly aid them in enforcing tranquility. However, it would be countermanded by the constitution.
In the case of the abortion case, the reporter is mistaken that the rights exist in the constitution.
Unlike the right to keep and bear arms, which is listed explicitly and has over a century of enforcement tradition to draw from, the rights asserted to exist that protect abortion were conjectured only recently, not based on explicit text, and not actually upheld by the court in every case. In Roe, certain rights were claimed. Later, in Casey, those rights were considered not to exist, but others to exist that, in a different way, protected abortion. So it is not the case that rights upheld through decades were erased.
What the court in this case did was assert the fact that no clear case has been made for this right and, considering that another right might conceivably be threatened, the right not to be arbitrarily exterminated, there is not enough of a case for a right to abortion.
Each previous case that had claimed a right to abortion claimed different criteria, different reasons, and usually in every case very vague ones.
In light of the flimsiness of the case for this right, the Supreme Court did the only thing it could do, which was refer it to legislators.
An individual right wasn’t erased in favour of government interest. Rather, the case for the existence of a right was found to be too flimsy.
Ironically, Ginsburg herself was agianst the Roe decision, because she also saw no basis for the right to exist, and considered that interference by the Supreme Court on the issue interrupted a process that was already taking place where more and more states were changing their paradigms and legalizing abortion.
She was proved right. Because there is no constitutional basis, it was eventually countermanded and, because it had bypassed the democratic legislative process, it embittered and prolongued a debate which would probably already be settled, but now will be rehashed.
Probably the world is less liberal than it was then, so the chances for a shift in paradigm are less than if the Supreme Court had not assumed legislative functions and interfered.
From a note on the syllabus:
On the contrary, arguments are made that abortion is a constitutional issue: nytimes.com/2022/06/26/opin … rtion.html
[b]'Ending the forced sexual and reproductive servitude of Black girls and women was a critical part of the passage of the 13th and 14th Amendments. The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery and guaranteed all people equal protection under the law. It means the erasure of Black women from the Constitution.
'Mandated, forced or compulsory pregnancy contravenes enumerated rights in the Constitution, namely the 13th Amendment’s prohibition against involuntary servitude and protection of bodily autonomy, as well as the 14th Amendment’s defense of privacy and freedom.
‘This Supreme Court demonstrates a selective and opportunistic interpretation of the Constitution and legal history, which ignores the intent of the 13th and 14th Amendments, especially as related to Black women’s bodily autonomy, liberty and privacy which extended beyond freeing them from labor in cotton fields to shielding them from rape and forced reproduction. The horrors inflicted on Black women during slavery, especially sexual violations and forced pregnancies, have been all but wiped from cultural and legal memory. Ultimately, this failure disserves all women.’[/b]
I mean, come on, if the Constitution is all about granting all citizens equal protection under the law, how can it not take into account the fact that only women can become pregnant?
And, please, don’t try to argue that if women are forced to give birth, they can ever really be equal to men socially, politically and economically.
Or, sure, think yourself into believing that actually is possible.
Specifically, though, in the terms of the case, what would it change that only women give birth?
The terms are liberty, which applies equally, woman or man, and the right to not be exterminated, which applies to woman or man.
There is no standard that is being applied to women specifically because they are women. Sex is not the discriminating factor. The discriminating factor is who is in a position to end a life, in this case it’s women.
Sex is incidental to the terms of the case, not fundamental.
OK, say it is a sexual discrimination issue. What would change about the case as it was tried? Would there be any more or less consideration for liberty? Would there be any more or less consideration for right to live?
Be specific.