"What Obergefell Says About Abortion," by Prof. Stephen Gilles (Published and Then Depublished in Law & Liberty)

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Prof. Stephen G. Gilles (Quinnipiac University School of Law) published this op-ed at Law & Liberty, but then had it removed by the President of Liberty Fund (the publisher of Law & Liberty) "over some concerns he had about unwanted attention." I e-mailed the Law & Liberty people Thursday to ask for more details, but they haven't yet gotten back to me. Naturally, Liberty Fund is entitled to choose what goes on the Law & Liberty site; but though they have the legal right to change their mind and remove an item they had chosen to publish, that strikes me as the wrong approach (at least absent evidence of serious factual error, plagiarism, or the like, which is of course not their concern in this case).

I therefore thought I'd pass the item along; it of course represents Prof. Gilles' view, not my own, but I think our readers will find it interesting.

Richard Garnett is right about Dobbs v. Jackson Women's Health: the Supreme Court should overrule Roe v. Wade and Planned Parenthood v. Casey because the supposedly fundamental right to elective abortion is not "objectively, deeply rooted in this Nation's history and tradition," as Washington v. Glucksberg requires. Prior to Roe, what was deeply rooted in the American legal tradition was not a right to abortion, but its opposite: abortion at any stage of pregnancy was a crime. Under Glucksberg, Roe and Casey are not merely wrong—they are rogue decisions in radical conflict with a constitutional test that, as Chief Justice Roberts has written, "many other cases both before and after [Glucksberg] have adopted." If the Glucksberg test stood alone as the Court's established approach to implied fundamental rights, the case for overruling would be open and shut. And as Professor Garnett ably explains, Chief Justice Rehnquist's dissent in Casey thoroughly refuted the elaborate stare decisis arguments that constitute the right to elective abortion's last line of defense.

Unfortunately, Chief Justice Roberts' broad endorsement of the Glucksberg test was written in dissent in Obergefell v. Hodges, the Court's most recent pronouncement on implied fundamental rights. Obergefell recognized a fundamental right to same-sex marriage while refusing to apply the Glucksberg test, under which there obviously is no such right. Obergefell granted that Glucksberg's approach might have been appropriate in its assisted-suicide setting, but found it "inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy." That alternative approach, as described in Obergefell, requires the Court to "exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect." Unlike the Glucksberg test, "[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries."

It might seem that Obergefell makes the path to overruling Roe and Casey less straightforward. If Roe and Casey were rightly decided under the Obergefell approach, the right to elective abortion would have significant support in the Court's fundamental-rights jurisprudence. But in reality, both abortion decisions are egregiously wrong by the standards of "reasoned judgment" described and applied in Obergefell. Consequently, the right to elective abortion has no foundation in either of the tests the Court has used to determine whether an asserted right is fundamental.

All roads lead to overruling Roe, and for the reasons that follow, the Court should say as much.

Errors in "Reasoned Judgment"

First, Obergefell directs the Court to "respect" and "learn from" history. Instead, Roe blatantly misrepresented the Anglo-American legal tradition regarding abortion, and Casey flat-out ignored history rather than admit Roe's errors. Our legal tradition regarding abortion began with a common-law consensus that abortion should be a crime no later than quickening, when the unborn child was first known to be alive. Following the early 19th-century scientific discovery that a living human organism is created at conception, a new legal consensus developed, prohibiting elective abortions throughout pregnancy. Under Obergefell's "reasoned judgment" approach, that consensus is not conclusive, as it is under Glucksberg. But a Court that respects our tradition would at least give great weight to its teaching: abortion was always criminalized in order to protect the unborn.

After holding that "the unborn" are not "persons" within the meaning of the Fourteenth Amendment, Roe's historical errors continued. The Court cavalierly inferred that this exclusion of the unborn undermined the strength of the state's interest in protecting them. Assuming Roe's personhood holding was correct, the Court drew the wrong inference from it. If the unborn are not persons under the Amendment, it is because the common law did not include them in the category of legal persons—not because the common law denied that they were human beings prior to birth. In light of our legal tradition criminalizing abortion, omitting the unborn from federal constitutional personhood could not possibly have been understood as depriving them of eligibility for protection under state law. The Amendment requires the states to recognize the legal personhood of any human being who has been born. It does not forbid them to exercise their traditional authority to decide whether (and to what extent) to protect unborn human beings by criminalizing abortion and other attacks on their lives.

The errors continue when we turn to Roe's blithe extension of reproductive liberty from the right to prevent pregnancy (by contraception) to the right to terminate it by abortion. Here Obergefell is instructive on what the current "reasoned judgment" test requires. In extending the right to marry beyond opposite-sex couples, Obergefell argued that "the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples." The reasons supporting the right to contraception, by contrast, do not "apply with equal force" to elective abortions. It is true that women who use contraception and women who have abortions both wish to be spared the burdens of pregnancy, childbirth, and motherhood. But that similarity cannot conceal an essential difference: unlike contraception, every abortion has at least one victim—the fetus whose life is terminated along with the pregnancy. Obergefell, by contrast, found no evidence that same-sex marriage would harm either marriage as an institution or third parties.

Roe and Casey conceded that this difference gives the state an important interest in protecting fetal life. But neither decision explained why that state interest does not undermine the case for recognizing a fundamental abortion right in the first place. Instead, Roe simply declared that women needed this right. It then discounted the state's interest in protecting the fetus prior to viability, on the ground that there is no consensus about when a fetus stops being "potential life" and qualifies as a new human life. But as Justice Scalia explained in Casey, "'reasoned judgment' does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere 'potentiality of human life.'"

Having ruled out our legal tradition's resolution of this disputed question, Roe foisted on the states its own novel theory: at the earliest, fetal life becomes human life at viability. Yet, as the Court said in Gonzales v. Carhart, "by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb." The pre-viable fetus is the same living organism that it will be after it becomes viable, and after it is born. From the outset, it contains within itself the genetic endowment that makes it a member of our species, distinguishes it from other humans, and directs its own biological development through all the stages of human life. These characteristics make it fully reasonable for the state to protect the fetus as a human being—or, at the very least, a new human organism that is naturally developing into a human being. Whether a caterpillar is better understood as a "potential butterfly" or a "butterfly at an early stage of its development," a compelling interest in protecting butterflies would entail a compelling interest in protecting caterpillars.

Principled Consistency

Roe's viability line also contravenes Obergefell's requirement of principled consistency. The reasons underlying the state's compelling interest in protecting the lives of viable fetuses "apply with equal force" to the pre-viable fetuses that Roe and Casey forbid the State to protect. Roe's only justification for the viability line was that "the fetus then presumably has the capability of meaningful life outside the mother's womb." But this capability turns on factors, such as fetal lung development, that are irrelevant to the state's interest in protecting the fetus as new human life. Casey similarly posited that viability establishes "the independent existence of the second life." The State, however, seeks to protect the fetus because it is a second life that can reasonably be regarded as human, whether or not it can already survive independently of its mother.

Nor is there any real substance to the "independent existence" rationale. Under Roe and Casey, a fetus becomes viable as soon as it has a decent chance of survival outside the womb—even though it would probably die if born at that stage in its development. Indeed, for roughly two months after it becomes viable, the fetus is still so premature that living outside the womb would endanger its life. For that reason, laws prohibiting post-viability abortions classify the deliberate induction of labor as an abortion until the fetus can safely live outside the womb. The allegedly "independent" existence of the viable fetus thus entitles it to remain completely dependent on the woman until it can safely be born.

The arbitrariness does not end there. Under Roe and Casey, the fetus qualifies as viable once it might survive indefinitely outside the womb "with artificial aid." In other words, whether a fetus may be killed at will, or instead shielded from elective abortion by state law, turns on medical skill and technology. The same fetus that would be viable in a state-of-the-art hospital may be pre-viable in an ordinary one. "Reasoned judgment" does not support the judicial creation of such bizarre anomalies in the protection of human life.

The final reason why the viability line fails Obergefell's "reasoned judgment" approach takes us back to the Fourteenth Amendment. If birth marks the onset of constitutional personhood, the Amendment implicitly rejects any test that requires a "person" to possess some specific capability or have reached some developmental milestone. Even if a newborn is too premature to survive, everyone agrees that it is a Fourteenth Amendment person and no one—including either parent—can lawfully kill it. Yet the viability line makes eligibility for protection from elective abortion turn on the ability to survive indefinitely outside the womb, which is irrelevant to the Amendment's criterion for personhood. As Justice White put it in dissent in Thornburgh v. ACOG: "the State's interest, if compelling after viability, is equally compelling before viability." Obergefell's "reasoned judgment" test thus leads to the same conclusion as the Glucksberg test: the state may assert a compelling interest in protecting fetal life beginning at conception. Roe and Casey should therefore be overruled.

Editor's Note: The author has submitted an amicus curiae brief in Dobbs v. Jackson Women's Health.

NEXT: Thoughts on Dean Chemerinsky, Supreme Court Justices, and "Partisan Hacks"

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  1. I don’t see how this follows. Any legislature will have some people in favor and some against on an issue like this. A “reasoned” legislative “judgment” in favor is just as reasonable as a “reasoned” legislative “judgment” against.

    So a decision for is a “reasoned judgment.” I don’t see how it isn’t. But so is a decision against.

    1. What nobody is saying is, those cases are all lawmaking by the Supreme Court. Thst is prohibited by Article I Section 1 of the constitution.

      1. If you stinking lawyers want judicial review by know nothing, bookworm, Ivy indoctrinated scumbags, enact an Amendment.

  2. “Prior to Roe, what was deeply rooted in the American legal tradition was not a right to abortion, but its opposite: abortion at any stage of pregnancy was a crime.”

    Actually it was becoming legal in several states, most notably California, signed into law by Ronald Reagan in 1971.

    If this is the analysis though, then Griswold should be overruled too.

    1. Yeah, I noticed that nonsense as well. Not just becoming legal. Was de facto legal for a long time in many places.

      When you start off with a delusion like that, how can you build any kind of argument?

      1. Becoming legal or being unprosecuted for a time in some places does not remotely contradict that the criminality of abortion was deeply rooted in American legal tradition. Your argument is beyond delusional.

        1. All those laws that have not been enforced for years suddenly come to life! They control us! The corpses are back in the drivers seat!

    2. The California supreme court had decriminalized abortion there two years prior in 1969.

      1. So, the SCOCA could create, on its own authority and if not overruled within two years, a position “deeply rooted in the American legal tradition”?

    3. California is not the United States.

      1 out of 50 or even 5 out of 50 does not negate “deeply rooted”.

      1. It sure does negate the ‘abortion at any stage of pregnancy was a crime’ nonsense.

        1. No. States in a federal system can have bad laws or lack good ones without it being a general trend.

          1. That’s not what the OP says. The OP goes further than just ‘deeply rooted’ and says ‘abortion at any stage of pregnancy was a crime.’

            This is false. Unless you want to pretend pregnancy only counts post-quickening. Which is 1) untrue and 2) rather gives the game away.

            Why is the author making such a radical and untrue statement when he doesn’t need to?

            1. What it says specifically is:

              Following the early 19th-century scientific discovery that a living human organism is created at conception, a new legal consensus developed, prohibiting elective abortions throughout pregnancy.

              1. consensus does not require unanimous.

              2. Mid to late 20th century changes in state abortion laws doesn’t say much about the 19th century legal consensus.

              Can you present any cite for the proposition that a majority of US states did not prohibit abortion at all stages of pregnancy during the 19th century?

              1. MatthewSlyfield : Can you present any cite for the proposition that a majority of US states did not prohibit abortion at all stages of pregnancy during the 19th century?

                As noted in my post, there was no consensus in this country that abortion was a crime prior to the mid-nineteenth century. As noted in several posts above, there was no consensus abortion was a crime in the twentieth century. So what makes the brief period you reference so special? You might just as well claim there was a “consensus” drinking was crime because of Prohibition.

                1. What you “noted” was a bald-faced lie. There was in fact a consensus in this country, and in the common law tradition for centuries, prior to the mid-nineteenth century that abortion was a crime after quickening.

              2. 1. consensus does not require unanimous.

                Strictly speaking it does, but Prof. Volokh and his Descriptivist Ilk won’t accept that.

                1. “‘1. consensus does not require unanimous.’

                  Strictly speaking it does, but Prof. Volokh and his Descriptivist Ilk won’t accept that.”

                  Nonsense. The definitions of the word invariably require “general”, not “unanimous” agreement. There are outliers where only small groups are involved, but the word would be useless for most applications if your supposed “strict” definition were more generally applied.

            2. For folk into that whole “original framers” kinda thing, this:

              In colonial America, abortion was not just legal—it was a safe, condoned, and practiced procedure – common enough to appear in the legal and medical records of the period. Official abortion laws did not appear on the books in the United States until 1821, and abortion before “quickening” (14 weeks to 26 weeks into pregnancy, when a mother feels the baby kick) did not become illegal until the 1860s. If a woman living in New England in the 17th or 18th centuries wanted an abortion, no legal, social, or religious force would have stopped her.

              1. Thank you grb.

                It’s amazing how much people can suck at history when their job requires they suck at it.

              2. There was no need of or utility for laws against surgical abortion that was anyway not possible or practiced, and the absence of such laws accordingly proves nothing, certainly not a “deeply rooted right” to abort.

    4. becoming legal in several states” =/= “deeply rooted in American legal tradition”.

      The fact is that the ‘abortion is a crime’ position was deeply rooted. That the roots were starting to weaken on their own does not change the truth of the first fact.

      Regardless, the point is not that ‘abortion is a crime’ was deeply rooted – the point is that under the standard by which Roe was decided, it should have required that ‘abortion is not a crime‘ have been deeply rooted. Clearly that was not the case. It was, as you point out yourself, mixed.

      1. I don’t see why you need to overplay your hand with ‘abortion as a crime was deeply rooted.’

        You don’t need it to prove your thesis. It’s not true. And yet you gotta go there with some ipse dixit.

        1. Rossami: “The fact is that the ‘abortion is a crime’ position was deeply rooted.”

          Your ipse dixit absurdly denying this flies in the face of historical facts.

      2. The situation was the same as with Griswold — contraceptives used to be illegal everywhere, but were becoming legal state by state, and in most states where it was still illegal, the law was not enforced.

        1. The situation was the same as with Griswold — contraceptives (like abortion) used to be illegal everywhere, but were becoming legal state by state, and in most states where it was still illegal, the law was not enforced.

        2. This is not really an argument for SCOTUS to leap in and leap ahead.

  3. I don’t see how it can be argued thar Roe is inconsistent with “reasoned judgment.” Any legislature will have some people in favor and some against on an issue like this. A decision in favor is just as much a use of legislative “reasoned judgment” as a decision against.

    So a decision for is a “reasoned judgment.” I don’t see how it isn’t. But so is a decision against.

    Neither decision would be inconsistent with the enunciated standard.

    1. “That alternative approach, as described in Obergefell, requires THE COURT to ‘exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.'” So, the question is whether THE COURT “must” overrule reasoned judgment of the LEGISLATURES.

  4. Prior to Roe, what was deeply rooted in the American legal tradition was not a right to abortion, but its opposite: abortion at any stage of pregnancy was a crime.

    Professor Volokh, as a matter of history, that is an example of the, “serious factual error,” you mention. There is no way to get to that conclusion without excluding large parts of the historical record, and picking and choosing among the rest.

  5. As Justice White put it in dissent in Thornburgh v. ACOG: “the State’s interest, if compelling after viability, is equally compelling before viability.”

    That is twaddle so egregious it amounts to more, “serious factual error.” It ignores the development continuum that occurs prior to viability, while pretending to consider it.

    1. The Roe Court expressly declined to consider “the well-known facts of human devwlopment” in addressing Wade’s “personhood” argument.

  6. I disagree completely with the premise that a right must be deeply rooted in our history and traditions. I think it’s entirely possible to determine that people who lived 250 years ago had different notions of what is, and is not, a right than we do, and we’re not bound by their understandings.

    Suppose there had never been a Civil War and, hence, no civil war amendments. Suppose that in 2021, for the very first time, the Court was being asked to re-visit Dred Scott and decide if non-whites are citizens. I would hope that even in the absence of the civil war amendments, the Court would conclude that overt racism is no longer in keeping with American values and overrule Dred Scott. And if they didn’t, they would deserve every bit of the obloquy that would come their way.

    1. I agree, the ‘deeply rooted in history and traditions’ approach to rights is dead wrong. The whole reason for the American Revolution was that perceived rights were being violated by the (British) government. History and tradition is mostly about how governments have failed to protect rights.

      Rights were a radical idea, and one our country was founded on. You can’t expect radical ideas to be rooted in history and tradition.

      1. “History and tradition is mostly about how governments have failed to protect rights.”

        Awesome. I had never thought about it that way before, but you’re absolutely right.

      2. Rights were a radical idea.

        The Bill of Rights of England from 1689 would like a word.

        1. Which was radical at the time.

          Only England had developed a theory of rights, out of all the world. Radical. The conceptual foundation? Radical. The US was even more radical (rejecting, among other things, the notion of kings and nobility). The idea that governments are created to protect rights? Radical.

          Nor is time a good measure of what is radical. John Locke’s second treatise of government is still a radical document, despite being written in 1690. People in power rarely wish to grant the full scope of Locke’s theory of rights, because it would limit what they can do with power.

      3. “I agree, the ‘deeply rooted in history and traditions’ approach to rights is dead wrong.”

        I suppose the answer to that question depends on where it is you think that rights come from. If you’re one of those “Natural Law” nuts, then laws come from God, already fully-formed and robust. If, on the other hand, you believe that rights come from the consent of the governed, you get a whole different idea.

        When the armed robber has a shotgun pointed at your torso and demands “your money or your life”, you can try lecturing him about the nature of property rights and about your right to life, and neither one is likely to persuade him to lower his weapon, and offer you a different choice. Might makes right, as the lion will tell the gazelle, that’s the Natural Law. When you can run faster than the lion, then you can come and drink out of the water hole whenever you want.

        1. When the armed robber has a shotgun pointed at your torso and demands “your money or your life”, the government isn’t going to save you either.

          Rights can be violated (both by governments and by individuals). But as the robber is violating your rights, it wouldn’t be murder if he were shot dead in the act, but would instead be justified (because he was violating your rights). And it wouldn’t matter if the shooter were agents of the state or a private party.

          Rights are about what you should be entitled to do without fear of retribution. You don’t need to invoke a god to understand rights exist before government. Governments are instituted among men to secure rights, not to create them.

    2. I disagree completely with the premise that a right must be deeply rooted in our history and traditions. I think it’s entirely possible to determine that people who lived 250 years ago had different notions of what is, and is not, a right than we do, and we’re not bound by their understandings.

      Me too.

      We are entitled to think.

    3. “I disagree completely with the premise that a right must be deeply rooted in our history and traditions. I think it’s entirely possible to determine that people who lived 250 years ago had different notions of what is, and is not, a right than we do, and we’re not bound by their understandings.”

      I agree. So does everyone. You’re free to amend the Constitution at any time.

      1. We’re also free not to bother if we can achieve the same result by a simpler means.

        1. Why have a written Constitution at all?

          1. That’s a false alternative. The only two choices are not rigid originalism versus anything goes. My proposal is that the Constitution means what it says as we understand the meaning of the words today.

            1. “My proposal is that the Constitution means what it says as we understand the meaning of the words today.”

              Long winded way to say “anything goes”.

              1. OK, so you didn’t understand my argument.

                1. I understand it, you however don’t.

                  1. What I said bears no resemblance to anything goes

                    1. Sure it does, your argument lacks any limiting principal so its functionally “anything goes”.

                  2. “I understand it, you however don’t.”

                    Bob’s long way of saying Bob doesn’t understand anything.

                2. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

                  ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

                  ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

              2. “‘My proposal is that the Constitution means what it says as we understand the meaning of the words today.’

                Long winded way to say ‘anything goes’.”

                It’s actually the position of both sides of the argument. One side of them wants to pretend that the way THEY understand it now is the way everybody used to understand it, and there is no other possible way to understand it.

        2. Yes you are free to do that — but, not while also claiming to follow the Constitution or claiming to live in a country governed by a Constitution, or claiming that you are doing anything other than by means of sheer force and unconstitutional imperialistic tyranny.

          1. Tell the voters they’re imperialistic tyrants. Why should the people take seriously anyone who insults them in that fashion?

          2. Bad news, M L. This nation is not governed by the Constitution. It is governed by the sovereign People.

            They wrote the Constitution as a decree, asserting their power to create government, empower government, limit government, and constrain government. Of course, the Constitution cannot and does not govern or constrain the People, who authored the Constitution.

            While they remain sovereign, the People act at pleasure, without constraint. If you doubt that, go back and take another look at the Declaration of Independence, and the Constitution itself, where you can read about it in so many words.

      2. Why do we need to amend the Constitution when it already guarantees rights that are not so “deeply rooted?”

        We don’t. We just need to recognize that the principles provided cover a lot of ground, even if many at the time of drafting didn’t realize it.

        As I said, we are entitled to think, and to observe, and to learn.

        1. If we oblige ourselves of the opportunity to think, observe, and learn — what we learn is that the federal judiciary has invented doctrines out of whole cloth to usurp the self-government of the people, with notions like “substantive due process” that were never constitutionally adopted.

          1. Your conclusions are unimpressive.

          2. “If we oblige ourselves of the opportunity to think, observe, and learn”

            If you don’t want to do any of that, you can just be Conservative instead.

    4. It’s not hust slavery that was deeply rooted. Wife-beating and marital rape also were.

      20th century state legislatures – often well into the 20th century – abolished men’s right to initiate a pregnancy for the same reason they abolished women’s right to terminate one, because they considered the previous practice barbaric.

      It seems to me that if “history and tradition” are the guide, one right is as fundamental as the other. After, the Supreme Court found it unconstitutional to require the father’s consent to terminate a pregnancy. If the logic holds, should it be constituonal to recquire the mother’s consent to initiate one? If marriage creates a zone of privacy outside the state’s interference, why doesn’t that cover EVERYTHING the couple does in bed?

      1. “After, the Supreme Court found it unconstitutional to require the father’s consent to terminate a pregnancy. ”

        Motherhood is a readily-observable fact. Fatherhood is a strongly-held opinion. So you have the problem of deciding who gets to claim to be “the father” who can give consent.
        Also, of course, the father’s role in creating a pregnancy does not continue forward. When the egg cell leaves the mother’s body, she doesn’t have any authority to terminate it’s life or not, so why would the father’s authority over the sperm cell extend past the time it’s left his body?

    5. As ML said, if the people today decide that we should have rights different than they did 250 years ago, you are entirely free to change the Constitution.

      However, for the Courts to unilaterally overrule the otherwise-legitimate acts of the Legislature, they must be able to point to something rather stronger and less ambiguous than one (or nine) judge’s perception of changing mores. Until we the people express our opinion by changing the Constitution, maintaining the status quo of rights “deeply rooted in history and tradition” seems entirely appropriate to me.

      1. Rossami, I would find your position far more persuasive if the amendment process didn’t make it damn near impossible to pass even amendments that enjoy broad support. For amending the Constitution, a super majority probably is a good idea, but 2/3 of each house PLUS 3/4 of the states?

        If you’re going to create insurmountable hurdles, expect people to find alternative ways around them. Keeping us stuck with things that have outlived their usefulness just because we don’t have the near-unanimity required is not happening.

        1. “broad support” does not mean a transient “50% + 1”. It is hard to pass amendments by design. And having watched governments that don’t make that a bit hard, our current structure is a good one.

          The barriers are not insurmountable. Your core problem is that your proposals don’t have the broad support you seem to think they do.

          But, by the way, if you really do think the Constitution sets too high a hurdle to pass amendments, at least do the groundwork of formally proposing an amendment to change the amendments process.

          1. Why should I go to the trouble when there’s a perfectly fine school of interpretation that just simply holds that the Constitution means what it means in 2021, not in 1789?

            With apparently no one thinking there was a Constitutional problem with it, South Carolina executed someone by burning at the stake as recently as the 1830s. You sure you want to go back there?

            And as far as broad support, it’s not just about amending the Constitution; it’s about flyover country having a veto over anything the coasts want. Your position is that that’ s just fine because you like the results. Try not being a result-oriented hack for a change and ask if that’s actually any way to run a country.

            1. Because that’s not “a school of interpretation”, that’s a gateway to chaos. It’s utterly unworkable.

              Before accusing other of being “a results-oriented hack”, maybe you should look in the mirror. Note that I often agree with your policy preferences on individual issues. I am not, however, willing to throw out all our constitutional controls and protections in order to achieve them. I can see that the long-term costs of abandoning our processes far outweigh the short-term gains of achieving a particular result. You, on the other hand, are as bad as Roper in A Man For All Seasons.

              1. I’m not familiar with Roper in A Man for All Seasons.

                You, along with Bob, seem stuck in a binary in which the only two choices are throwing out all constitutional controls and protections, or sticking with rigid originalism. Those aren’t the only two choices. It’s possible to say, i.e., that as we understand cruel and unusual today, public floggings are out, even though probably none of the framers would have seen it that way. Because the question is what do we consider to be cruel and unusual, not what did they.

                And it’s possible to say that without also saying that that there’s no need for any textual mooring at all. When someone shows up claiming that there’s a constitutional right to eat steak and lobster for dinner every night, I will absolutely be in your corner. Because that would not be a case of saying we understand words differently; that would be a case of there are no words in the Constitution that plausibly mean that. You have to find something in the text to hang your hat on.

                1. You persist in arguing with a strawman rather than address what we’re actually saying. You continue to equivocate rather than to admit that your proposed answer boils down “the constitution means whatever I say it means today”. At the root, I wonder if you really understand what people mean when they talk about the ‘Rule of Law’ and how it is different from the ‘Rule of Man’.

                  1. No, here’s the difference. Much as I loathe the electoral college there is no plausible argument that it’s unconstitutional. And my view requires a plausible argument based on the text. Just not necessarily the argument the framers had in mind

                  2. Rossami,

                    Do you claim that the constitution is utterly unambiguous, that there is no scope for disagreement as to how it is to be read? That seems bizarre to me.

                    Krychek raises the “cruel and unusual” issue. Is it your opinion that we must stick to the 18th Century opinions on that? Don’t th every words, “cruel” and “unusual” imply subjective judgments?

                    And what if we learn, through experience, that the criminal procedures of the 18th Century are in fact unfair and biased against the defendant? Are we not entitled to say, “Wait, this is not ‘due process?'” Again, the very phrase implies that judgment is involved in determining whether processes meet the standard.

                    The Constitution doesn’t say, “These specific punishments are acceptable, these are not.” It doesn’t say, “here are all the rules for criminal trials.” It lays out principles.

                    And one more thing. You say, your proposed answer boils down “the constitution means whatever I say it means today”

                    No. Not I. Not Krychek either. Rather we have a part of our government – the courts – whose members are selected by specified procedures that determines these things.

                  3. Rossami, just hypothetically, imagine a proposed constitutional amendment which would get rid of all minoritarian protections in the U.S. system of government, but would leave intact all individual rights in the Bill of Rights. What would be eliminated would be stuff like the electoral college, super-majority voting requirements for whatever they now apply to, and equal representation of states in the U.S. senate.

                    How many opponents do you suppose it would take to block that amendment? I am not sure how many, but suggest a good approximation would be the aggregate of the majorities in the upper houses of the 13 smallest states—in short, somewhere in the vicinity of 1,000 people, more or less.

                    1. 41 people could do it while it was being debated in the US Senate.

                2. “When someone shows up claiming that there’s a constitutional right to eat steak and lobster for dinner every night”

                  It’s not a problem if you want to eat steak and lobster for dinner every night, because it’s nobody else’s damn business what you want to eat.

                  The actual challenge is an implication. If I can’t afford to eat steak and sea-bugs for dinner every night, will someone be appointed to raise and butcher cattle for me, and to go out to sea and catch edible sea-bugs for me? No? Is that an infringement of the right to determine for myself what my diet should be? No? That ends the Constitutional part of the debate.

                  Does anyone besides me have a duty to see that I have anything to eat? I was born prior to Roe v. Wade, so the answer used to be “yes”. Then I was born, and the answer continued to be “yes”. Eventually, I reached majority and the answer changed to “no”.

            2. With apparently no one thinking there was a Constitutional problem with it, South Carolina executed someone by burning at the stake as recently as the 1830s. You sure you want to go back there?

              The existence of the Trump regime convinced me that we need to burn a lot more people at the stake.

              1. “The existence of the Trump regime convinced me that we need to burn a lot more people at the stake.”

                Nah. I’m a more modern thinker. We should used a scientific inquiry to determine which method best drives the demons out, and then use that method.

              2. “With apparently no one thinking there was a Constitutional problem with it, South Carolina executed someone by burning at the stake as recently as the 1830s. You sure you want to go back there?”

                I’m guessing there was at least one guy who had a problem with it.

          2. ““broad support” does not mean a transient “50% + 1”. It is hard to pass amendments by design. And having watched governments that don’t make that a bit hard, our current structure is a good one.”

            Good, but not necessarily the best. I lived in a state that allowed both statute by initiative and state-constitutional-amendment by initiative, and I have some ideas for making it better.

            For example… one change that I would make would be to allow for provisional amendment. The amendment could be drafted and then implemented provisionally. It would be put in place and tried out, with a built-in sunset that would NOT require a separate amendment to undo (so, not the 18th/21 amendment as model) In a first step, 50%+1 (or some supermajority if you want to play it cautious) could pass a provisional amendment, which would be provisionally added to the Constitution. The amendment would be effective for, say, 10 years, then absent further action, would unamend itself out of existence. If the people decided they liked the amendment, a second step of making the provisional amendment permanent could be approved by 50%+1.

            Another alternative would be to require that a proposed Constitutional amendment would require 50%+1 of all registered voters, or even of all citizens eligible to vote, to become effective, instead of 50%+1 of all the voters who turned out for that particular election. You might make a rule that proposed amendments stay on the ballot until they either get 50%+1 votes either “yea” or “nay”, to keep people from defeating them by staying home on election day.

            Then, you might shift federal amendments from the state legislatures to the state’s voters, but putting them on the ballots with federal elections.

        2. “insurmountable hurdles”

          Hurdles surmounted 27 times.

          1. The fact that something has been done in the past is not proof that it can be done in the present.

        3. Krychek, If you are so concerned about making changes in the law, which others in different parts of the world don’t want to make, why not just focus on making those changes in your own local community or State rather than trying to use unconstitutional means to force it on other people in far flung jurisdictions that disagree with you?

          1. Because some solutions only work at the national level.

              1. “Because some solutions only work at the national level.”

                We only have one immigration policy, because the various states are required to admit newcomers from other states. We only have one military policy because either all the states are at war or none of them are.
                There’s a couple of examples. In 1780, The confederated States were 13 separate entities. Since ratification of the US Constitution, however, the United States is a singular entity, despite what some malcontents thought from 1861 to 1865. (and a few malcontents think now.)

        4. “Rossami, I would find your position far more persuasive if the amendment process didn’t make it damn near impossible to pass even amendments that enjoy broad support.”

          The amendment process is HOW you demonstrate that an amendment enjoys broad support. We don’t give pollsters the authority to amend the Constitution, or credit vague opinions about what public opinion has become, we have a process for confirming that it has changed.

          The process laid out in Article V doesn’t require a huge majority of the public to support an amendment. If 51% of the public, uniformly distributed, favored an amendment, it would pass handily, because every legislator, state and federal, would find a majority of the voters in their districts supported it.

          It is exactly whether or not support is “broad”, IOW, widespread, that the amendment process probes. It stops amendments that have majorities in their favor, but where the majorities are local, rather than widespread.

          And that is perfectly appropriate for the constitution of a federation, not a unitary state.

          1. “The process laid out in Article V doesn’t require a huge majority of the public to support an amendment. If 51% of the public, uniformly distributed, favored an amendment, it would pass handily, because every legislator, state and federal, would find a majority of the voters in their districts supported it.”

            There are a number of flaws in this argument. To save time, here’s one (easy) one to start with.

            Having 51% of citizens supporting something in no way ensures that a majority of voters do, too. That’s an unwarranted assumption. You’re assuming, among other things, that there isn’t an organized group already in power willing and able to use vote suppression to make sure that would-be voters who don’t support them can’t actually vote, which seems like an odd asssumption for a Republican such as yourself to make.

      2. It’s a very pinched reading of the 9A to argue only rights in the text count. As in, it reads the 9A out of the Constitution.

        Weird how the supposedly libertarian party is so skeptical of rights these days.

        1. We’re skeptical of the invention of positive rights, which in operation actually deprive people of their liberties.

          The 9th amendment was a recognition that we had too many rights to readily list. It wasn’t a blank check for the judiciary to invent rights out of thin air just because they thought they were a good idea. If you can’t point to evidence that a proposed right was already accepted at the time the 9th amendment was ratified, you should go for an amendment.

          1. Abortion is not a positive right. It’s a ‘shall make no law’ right.

            1. Except that involves one human doing stuff to a non-consenting human. There needs to be a little more consideration than just “Do as ye will”.

              1. That’s begging the question. And, indeed, has been part of the reasoning in Roe and every case in the line since.

                1. In what way is pointing out that there are no situations of the “Congress shall make no law” variety that involve one human harming another human become “begging the question”?

              2. “Except that involves one human doing stuff to a non-consenting human. There needs to be a little more consideration than just “Do as ye will”.”

                You have one human doing stuff to a non-consenting human on both sides of this argument. The difference is, one of the two can actually survive without the other.

          2. We’re skeptical of the invention of positive rights, which in operation actually deprive people of their liberties.

            Exactly.

            1. You prefer more proactivity in depriving people of their liberties, then?

      3. Not just a question of changing mores, Rossami.

        It’s not as if SCOTUS just shrugged and said, “Well, homosexuality is no big deal any more, so we guess SSM is OK.”

        Both the legal aspects of marriage and our understanding of homosexuality have changed over the years. That’s important, and has nothing to do with deep roots.

        And, on a different topic, the Constitution fully allows us to consider a punishment “cruel and unusual” even if the drafters didn’t.

        1. “Constitution fully allows us to consider a punishment “cruel and unusual” even if the drafters didn’t”

          Where specifically is that in the Constitution?

          1. Right next to where it says the president is commander in chief of the Air Force.

            1. Serious question:

              The Army and Navy are treated differently in the Constitution. How is the Air Force considered on the metric of how long appropriations can be for?

              -dk

              1. There are a couple of ways to try to answer this question:

                First, you can note that he Air Force was originally the Army Air Force, and has never been part of the Navy, and assume that the rules for the Navy do not apply to things that are not the Navy and have never been part of the Navy.

                Alternatively, you can play it safe and say that the Constitution contains a distinction between military forces that can be funded for more than 2 years at a time, and military forces that cannot be funded for more than 2 years at a time, and play it safe that the AF (and the SF) should be treated as the more restrictive category to “play it safe”.

                Even more alternatively, you could try to figure out why the Founders made a distinction between “military forces that can be funded for more than 2 years at a time” and “military forces that cannot be funded for more than 2 years at a time”, and work out what factors went into this distinction, then apply those factors (as an example, a reason for allowing the longer timeline for the Navy was the cost and time of production for building ships during the Founding era, and applying that to the AF and the SF, developing a strategic bomber force, developing a multi-role fighter force, and especially, building a satellite-deployment capability are similarly long-term, so the AF and SF might be properly classed as similar to Founding-era naval forces. Or, perhaps the distinction isn’t development time, but useful life, which would work out very similarly. The F-15 goes back to the 1970’s, and the B-52 goes back to the 50’s, and various ICBM systems have similar operational lifespans. You’re not going to get contractors willing to develop and build a joint strike airfighter platform if they aren’t assured of being able to sell them to the government for more than 2 years. That’s a quick way to find that your enemies have better aircraft than you do. (a problem we had in the 1930’s. The Luftwaffe had jet aircraft while ours still had propellers. the British were allies, but they got radar first and had the advantage of being able to read the German cryptography, so we got access to those things, despite not being able to develop and deploy them first.)

                And yet another alternative way to resolve your question is to amend away the distinction, conceding that letting the federal government keep a standing military isn’t as anathema as the Founders thought it would be.

          2. Where specifically is that in the Constitution?

            In how the public in the 1700s would have understood the judicial power.

            Also in how we currently understand the judicial power.

            The Constitution does not instantiate the standards of the 1700s – that is a ridiculous and untenable notion.

      4. “As ML said, if the people today decide that we should have rights different than they did 250 years ago, you are entirely free to change the Constitution.”

        I am? Cool. I have a few in mind.

        1. So stop wasting your time posting comments and get crackin’.

          1. Amendment 28:

            Any person who has ever signed any communication as “GKHoffman” may be summarily executed upon detection.

    6. I would hope that even in the absence of the civil war amendments, the Court would conclude that overt racism is no longer in keeping with American values and overrule Dred Scott.

      No. The problem with the Dred Scott opinion isn’t that it’s “no longer in keeping with American values” today—the problem is that it was inconsistent with the text of the U.S. Constitution as it existed in 1857.

      1. It’s certainly inconsistent with the text as we understand it today. I’m not sure it’s inconsistent with the text as it was understood in 1857. Which is kinda my point.

        1. As a historical matter, you are wrong. Dred Scott was inconsistent with the text of the US Constitution as it was written and as it was understood in 1857. It was wrong at the time and was immediately and widely denounced.

          Had that decision not led to the Civil War, it still would have been overturned.

          1. “As a historical matter, you are wrong. Dred Scott was inconsistent with the text of the US Constitution as it was written and as it was understood in 1857.”

            This is nonsense. Scot v. Sanderson is in no way counter to Constitutional text as of 1857, which is why the Constitutional text was amended in 1868.

    7. Dred Scott was not a decision about whether “non-whites are citizens”. Your grasp of the issue is so hilariously obtunded that nothing you say should be taken seriously. And the idea that nine unelected lawyers are entitled to impose the “civil war amendments” on a country that hasn’t passed them is retarded.

  7. Using the gay marriage case to overturn Casey would be the best thing ever!

    1. No, me winning Powerball would be the best thing ever. And that’s just as likely as the Supreme Court using Obergefell to overturn Casey.

      1. I have a winning Powerball ticket (I matched 3 numbers on Saturday). It’s not as awesome as you imagine.

        1. One winning ticket has the power to make someone a winner at Powerball, but almost never does so.

          1. Well, this time it did.

    2. What happened to the Immaculate Reception . . . I mean, Immaculate Conception . . .the Resurrection, and the Rapture, clinger?

      Is your superstition waning?

      Here’s the miracle on videotape . . .

        1. According to the nested comment structure which is clearly visible, Bob was the loon being talked to.

  8. The author of the op-ed, Gilles, is absolutely correct regarding the history. But… “A woman only became officially and publicly pregnant when she felt her fetus quicken, or move inside her, and she alone could ascertain and report the occurrence of quickening.” ([1995], at https://digitalcommons.law.yale.edu/yjlh/vol7/iss1/7/ )

    Both cite Blackstone, who wrote “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.” ([1765], at https://press-pubs.uchicago.edu/founders/documents/amendIXs1.html ]).

    1. That doesn’t sound like he’s right to me.

      Sounds like semantics.

      ‘officially pregnant.’ LOL

      1. “‘officially pregnant.’ LOL”

        That turns out to be important, through. You can’t claim there was a crime of terminating a pregnancy unless you can show that someone WAS pregnant, and now isn’t.

        The problem in ye olden, colonial times was that a woman was presumed not-prognant unless and until if was incontrovertible using the technology available at that time…. which meant that thee was probably a window during the time that she knew there was something going on down there and the time anyone else knew that there was anything going on down there. If she consumed an abortifacient during that time, there was no crime because they was no evidence of a crime. God would know but He is well known for keeping His own counsel as to how He should deal with things. Maybe certain religious folks are right, and when those women hit the afterlife, it’s lake of fire and blood time. Maybe, on the other hand, maybe certain different religious folks are right, and He is a loving and forgiving sort, and the lake of fire is reserved for other types of sinners. I don’t know, because I don’t need to know, and I believe that when He gets around to it, He’ll take care of it, whatever “it” is, and however He chooses to deal with it.

  9. The main problem with criminalizing abortion is, as it ever was, how does the government learn that one has taken place if the person either giving or having one declines to tell them about it?

    “Well, she was pregnant, and now she isn’t, and there’s no infant to show for it” is grossly inadequqte. You have problems at several levels:
    1. How do you know she was pregnant?
    2. How do you know she is no longer pregnant?
    3. Ever heard of miscarriage?

    There are some collateral attacks that can be taken, for example, you can probably identify medical schools that are teaching D+C (AKA surgical abortions) and pharmaceutical suppliers producing medical abortifacients, but you aren’t targeting abortions then, you’re just targeting the ones where the safety of the mother is protected. To that, you might choose to say “Yeah, OK, well, that’s HER problem!” but that kind of undercuts your claim to be “pro life”.

    The best way to reduce the number of abortions is to ensure that the only women getting pregnant are the women who want to be pregnant, which means comprehensive sex education for young women and ready availability of contraception to anybody who wants it, both of which are flatly unacceptable to members of the religious right.
    Shutting down Planned Parenthood (a desired outcome according to spokescreatures of the pro-life movement) runs directly counter to cutting down demand for abortion… they (the pro lifers) are actually trying to INCREASE demand for abortion.

    1. The number of abortions would still not be zero.

      Amniocentesis, which is indicated when a genetic condition incompatible with a healthy baby is a possibility, can’t be done until the second trimester.

      -dk

      1. “The number of abortions would still not be zero.”

        Point to where anybody said it would be.

    2. “The main problem with criminalizing abortion is, as it ever was, how does the government learn that one has taken place if the person either giving or having one declines to tell them about it?”

      This is hardly a problem unique to abortion. “Either” anyway isn’t right, and there are other sources of proof than admission.

      1. “This is hardly a problem unique to abortion.”

        Did someone say it was?

        ” there are other sources of proof than admission.”

        How does the government get these other sources of proof (assuming the 4th amendment is still part of the Constitution)?

  10. The issue here is not about the content of the essay. While I strongly disagree with the expressed points of view, it never should have been taken down. Moreover, I learn far more from people I disagree with than those with whom I am in accord.

    Furthermore, while I disagree with its text, the underlying polemic is intellectually honest. Intellectual honesty provides the foundation for learning.

    1. ” While I strongly disagree with the expressed points of view, it never should have been taken down.”

      The decision of whether or not it should have been taken down is entirely up to the people who decided that it should be “up” in the first place. As usual, the people who own the stuff get to decide who gets to use it and for what.
      Other people are free to access whatever is still up, or to wander over to another site that has stuff they like.

  11. Artie Ray Lee Wayne Jim-Bob Kirkland asked me to pass along a message expressing empathy for Prof. Gilles with respect to being depublished.

    Artie Ray said he would have expressed this sentiment directly but can not because Prof. Volokh depublished Artie Ray for making fun of conservatives.

    Carry on, “free speech champions” and “libertarians.”

    1. That he hasn’t de-published jackass you makes any such complaint inherently improbable,

  12. We like showing it was considered illegal, until we don’t and switch sides.

    Wait. Were we talking about abortions or speech or tazers or IR seeing through walls or effective cryptography or…

    1. Who is this “we”?
      Abortions were much more widely illegal before Roe..
      That is what is known as a “fact”

      1. Abortions were impossible to detect during and prior to the Colonial era. Medical abortions of that era were more dangerous to the mother, which is why by the time you get to 1973 surgical abortion was more common than medical abortion. Now, we’re going to see more development in medical abortion techniques.

  13. From their About page on the website:

    “About Liberty Fund
    Fostering ideas. Encouraging discussion. Creating an impact.”

    Need to add “Offer not valid if discussing abortion”

    1. Also need to add Bob to the “Editor:” credit.

  14. The existence of statutes is not compelling evidence absent information te enforcement. Were feticide statutes enforced? Or the common law crime? Rare or no enforcement bears on community views at least as much as existence of statutes. There is more than one kind of zombie law. E.g. there are plenty of statutes re race and sex that are not enforced but still in the books.

    1. Statutes “re race and sex” are not only still in the books, but widely enforced.

      If they are still widely on the books lack of enforcement does not really prove that they are not “objectively, deeply rooted in this Nation’s history and tradition”, particularly when the current lack of enforcement is widely due to undemocratic kritarchal intervention.

  15. A better argument for the legality of abortion is rooted in the EPC. Gender stereotypes are at root with the presumption that women must accept compelled motherhood…at risk to her life and health… and are due no consideration for the impact of its actions . That is, the entire burden is assumed by the pregnant woman and the restrictive statutes provide virtually no material support. This is all premised on the stereotype that there is only one appropriate response of a woman to a pregnancy. Women should be free from state-imposed roles, roles that perpetuate their economic and social inferiority.

    1. You don’t even have to go that many amendments in. The 13th amendment prohibits involuntary servitude.

    2. ” Gender stereotypes are at root with the presumption that women must accept compelled motherhood…at risk to her life.”

      This is both nonsensical, in SEVERAL ways, and illiterate.

      1. You wrote it that way.

  16. I do understand some of the logical (“reasoned judgement”) deficiencies of Roe v. Wade and subsequent decisions. Those deficiencies seem to get worse with each new opinion that adds another layer of complexity. The article seems to argue that those deficiencies are so bad that it should be overruled and that Congress should enact legislation, thereby taking it out of the Court’s hands. However, there is a problem with that argument…

    Specifically, under of City of Boerne v. Flores, 521 U.S. 507 (1997), the Court ruled that Congress cannot create _new_ rights. It stated that the Court alone has ability to state which rights are protected by the 14th Amendment, not Congress. The opinion was delivered by Kennedy, and was joined by Rehnquist, Stevens, Thomas, Ginsburg, and Scalia. Quite a mixture of left, center, and right.

    So, on the one hand we are being told by some that Roe should be overruled and that the states should make up their own rules, or that Congress should get to work. Yet having different states dictate different rights for women would violate the “equal protection” clause of the 14th Amendment, and having Congress establish new rights would also require overruling another case (City of Boerne v. Flores). Neither is workable as there is a cascade of problems that will occur with either option.

    The Court has to sort this out or a Constitutional amendment is required.

    1. None of that is a problem if the right to abort is not a Constitutional right.

      The States are perfectly competent to regulate abortions differently, and there is no “equal protection” problem created thereby.

      1. “None of that is a problem if the right to abort is not a Constitutional right.”

        At present, it is.

        Your argument seems to have been aborted.

  17. “The Court has to sort this out or a Constitutional amendment is required.”

    Or someone needs to work out a reliable method of placental transplant. So long as abortion and birth remain the only methods of terminating a pregnancy, abortion is going to remain in controversy.

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