Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just struck down is necessary".
Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way.
But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value.
Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.
> But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen.
It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else.
You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
It is explicit in the Constitution that people have rights not listed in it. Those unenumerated rights are, by their nature, not listed, but I find it hard to credit the idea that Americans don't have a right to privacy.
> You also ignored my example of 2A
Sure, because everyone does. The number of people arguing bans on personal ownership of nuclear arms are unconstitutional is... small. Even originalist/textualists seem to agree it's by no means absolute.
I don't think this is a winning argument. The fact that one argument - and one thought important enough to enumerate actually explicitly - is frequently ignored doesn't support the idea that another unenumerated one exists, and quite possibly the opposite.
More specifically, most Roe supporters have been ignoring the "bodily autonomy" philosophy all along, and more recently even going directly against it. It would seem that it's no more absolute than you believe 2A to be.
As I wrote elsewhere in this thread:
1. Have you taken to the streets protesting when people, even after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the "bodily autonomy" argument behind Roe is false.
Roe talks about this in terms of "privacy", saying that a woman in consultation with her doctor has the right to determine what's the best course of treatment; the government doesn't have the authority to take abortion off the table.
So, how does the government get the authority to take marijuana off the table? How do they get the authority to take any other treatment off the table? And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
This all seems to be the same argument, so why don't I hear very many Roe supporters arguing for the freedoms I referenced above, or at least providing answers to my questions? What's the principled line of philosophy that supports a freedom to abortion without also recognizing a right to medicinal marijuana or passing up a covid-19 show (when either is done under doctor supervision)?
FWIW when it comes to the argument of bodily autonomy in regards to covid vaccinations, you're still free to not get a covid vaccine. The government isn't marching into your house with armed men injecting you with covid vaccines. Making vaccine standards for things like public schools (which you can still choose to homeschool or send to private schools) is not the same as the government forcing you to get a vaccine.
When it comes to marijuana, it can be more difficult to get past Wickard and Heart of Atlanta Motel when it relates to things like commodities sold on near international markets. Abortion services are often way more local of a law, far more difficult to argue interstate commerce.
when it comes to the argument of bodily autonomy in regards to covid vaccinations, you're still free to not get a covid vaccine.
I think you're making it sound more black-and-white than it really was. It's true that they weren't talking about coming into your house and holding you down. But they did try to make it as close to "you can't get a job to earn money to buy food" as they could. Pres Biden did issue an EO saying that anybody doing business with the federal government, and anybody in their supply chain, must ensure that their employees are vaccinated. Given the enormous size of the federal government, this covers a huge proportion of the country. (the courts did throw this out, but not before they'd coerced a lot of people to go against their own conscience)
Further, that's as far as the politicians and regulators were able to go. I seem to recall talk in some locales (NYC?) talking about wanting to implement vaccine passports, with which local businesses would deny entry to unvaccinated people, so you can't even go to the grocery store to buy food.
And, of course, my main point was about what the masses were arguing for. I don't think you could seriously deny that a sizable faction of people were arguing that the government SHOULD do all of the above. And that's exactly what I'm saying: people are claiming to back the idea of "bodily autonomy", but for a whole lot of them, their actions demonstrate that this is much less a fundamental inalienable right than they're willing to admit today.
Bodily autonomy, right? Like, the right to not to get infected by a communicable disease in which there are preventative measures out there?
A pregnant woman the next desk over to you doesn't have any effect on your body. A person infected with covid the next desk over does. You do understand how pregnancy works, right?
I imagine most would agree I have bodily autonomy to move my arms. I can't then swing my arms and beat someone to death, right? Your right to swing your arms ends just where the other man's nose begins.
You have all the right you want to not get vaccinated so long as your action doesn't impact everyone else around you. Feel free to go live in the woods with everyone else who doesn't interact with the rest of society. Nobody is going to come by and say you need to get vaccinated, just that there are a lot of benefits to being a member of society if you choose to do so.
> Roe talks about this in terms of "privacy", saying that a woman in consultation with her doctor has the right to determine what's the best course of treatment; the government doesn't have the authority to take abortion off the table.
Roe also makes it quite clear it's not absolute:
"A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."
> So, how does the government get the authority to take marijuana off the table?
For the same reason as Roe highlights above; that the right to privacy is not absolute. I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
> And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
I think that's true directionally, but not quantitatively. I haven't seen riots about marijuana, or claims that SCOTUS is corrupt.
And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy. Admittedly, there may be differences in scale of risk that lead to this difference. But the rhetoric we're hearing today seems to frame abortion rights as an absolute with no room for such finesse. And I think it is on them to explain how to draw that line.
So? "You can only say it's a right if you riot about it" is a weird position to take.
> And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy.
I don't know what you think the leftist position is on this, but no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19.
Virtually all states require quite a few vaccinations - measles, mumps, rubella, etc. - in public schools. Once again, Roe doesn't rely on "bodily autonomy", and any such right is very clearly not absolute (as Roe itself makes clear about privacy). My autonomy to swing a knife around ends when it hits your face.
Thought experiment: Do we have a right to poop? Can Congress forbid me from pooping? How would SCOTUS rule on a law banning bowel movements?
> "You can only say it's a right if you riot about it" is a weird position to take.
A month ago, governmental violations of bodily autonomy were ignored, or grumbled about at most. If you want me to believe that this change is qualitatively different, you need to explain that, or else I'm going to put both violations in the same bucket.
> no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19
First, regardless of what they've actually tried to do, there has been a lot of talk about how they should. Such talk comes pretty much exclusively from the same group of people who think that overturning Roe is an apocalypse.
Second, they most certainly have tried to force vaccination as much as they could get away with. That wasn't by a law saying "get vaccinated or go to jail". That was a backdoor coercive thing where the gov't tried to say "if you want to do business with the gov't then all your employees must be vaccinated (leading to employees getting fired)", in conjunction with the fact that the government is already so damned big that they can be the 800lb gorilla in purchasing as a backdoor alternative to legislation. And while this was going on, people who I'm very sure support Roe were nodding their heads saying it's the right thing to do. Again, there may be a principled argument for treating this differently. But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
> But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
I'll take a stab at one potential explanation.
Pregnancy isn't infectious; you will not get pregnant by sitting next to a pregnant woman on the bus. Rights become more complicated when they impact others.
As well as the “privileges and immunities” clause.
The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
That works in principle but not in practice. The core issue in roe v wade was tossing out precedent while failing to show reasoning why tossing out precedent should be ok. So now the court seems to be chaotic. Whatever the makeup of the court, they may toss out precedent that doesn’t match the current majority’s interpretation of the constitution (of which there are many). Then suppose the scotus becomes a liberal majority. Then they may reinstate all the tossed out precedents. That’s just chaos, with the main focus becoming which party chooses justices, not any reasonable continuity and coherence of constitutional law.
I agree with your concerns about thrashing. I think that the fact that justices aren't elected politically, together with their typical lengthy tenure, is intended to buffer against that. But as politics becomes more polarized, perhaps the buffer doesn't serve as well anymore.
A core problem IMO is that justices are appointed politically. There's an assumption that politicians and their parties will appoint unbiased justices, presumably out of the goodness of their heart and respect for norms... That assumption looks laughably flawed today.
Agreed. Elsewhere in this thread someone pointed out that some recent justices may have been... less than truthful... in answers to the Senate during their nomination hearings, at least giving the impression that they'd continue to support Roe.
My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
How can you think it's not blatant politics when they lied about their opinions in congressional hearings only to overturn Roe once they had power. How can you think that is in good faith?
To argue, "oh whoops you didn't _do the work_ to obtain your RIGHTS" is also simply a distraction. The US is founded on the concept of unenumerated rights. Do not be fooled. We had those rights and now we don't thanks to this new court.
Look at it the other way around: if the nominees are being questioned about what their opinions are on specific issues, the Congress has already turned it into a political match. The Congress ought to be trying to probe for their qualifications as a justice, and I don't think that one's opinion on self defense or abortion figure directly into that.
Further, I don't buy that you truly believed the argument behind Roe anyway. I don't know you personally, but it's a good bet that you don't support the philosophy that it described. What Roe said[1] was that a person can make whatever[2] treatment they individual decide (in consultation with their doctor) is most appropriate for their circumstances.
But I'm betting that you don't actually agree with this, as evidenced that you likely haven't pursued other violations of it with such vehemence. So I ask you:
1. Have you taken to the streets protesting when people, after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the argument behind Roe is false.
[1] Believe it or not, I actually support the philosophy of bodily autonomy. But that doesn't change the fact that the actual argument behind Roe was a notably lousy one. This is precisely the point I was trying to make in my original comment: one's opinions about the goodness of something are independent of their judgment about the legality of legislation under the Constitution.
[2] Actually, Roe's text limits itself to just abortions, but it seems clear that such a principle ought to apply to all medical treatments in principle - that's why many of today's protests are framed more broadly as "bodily autonomy".
Being forced to carry to term is a different circumstance. As you say yourself, the text limits the ruling to abortion which even today's court has ruled as a unique circumstance. Women should have this right and not the states. I truly believe that, but my opinions are also a distraction...
The justices lied to congress and were always going to overturn Roe. There's no higher judicial ground here.
You're ignoring the fact that there are several philosophies behind constitutional interpretation, and that the dominant philosophy which you list here ("sole job is to interpret laws through the lens of the Constitution"), also called Originalism, is a recent creation by Scalia.
Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way.
But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value.
Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.