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Reversing Roe v. Wade Wouldn't be the First Time the Supreme Court Gutted Precedents that Protect Individual Rights - Far From it

That fact doesn't necessarily justify overruling Roe. Depending on how it's viewed, the history of such reversals may even counsel against further such moves.


One oft-heard criticism of the leaked Supreme Court draft opinion reversing Roe v. Wade is that it would be the first time the Court reversed a precedent protecting individual rights, as opposed to one that limits them. For example, law professors Sonia Suter and Naomi Cahn write that "this decision would mark the first time the Court overturned precedent to eliminate, as opposed to recognize a new, right." Georgetown professor David Cole, who is also the legal director of the ACLU, makes a similar, though somewhat more nuanced argument, contending that  the Court has "extended fundamental rights… in virtually all its decisions overturning constitutional precedents," whereas a reversal of Roe would be almost unprecedented in abolishing such a right.

In reality, the Supreme Court has gutted rights-protective precedents on multiple occasions - including some of its most prominent rulings. That history doesn't necessarily justify overruling Roe v. Wade. It may even counsel against it. But it is worth considering, nonetheless.

Perhaps the best-known example of the Court reversing precedents that protected individual rights is the abolition of protection for freedom of economic liberties in West Coast Hotel v. Parrish (1937) and other subsequent rulings. This wasn't just a matter reversing the Court's much-reviled decision in Lochner v. New York (1905). The Court also gutted numerous other decisions protecting economic liberties under the Due Process Clause of the Fourteenth Amendment, many of which long predated Lochner. Indeed, as co-blogger David Bernstein documents in his excellent book about Lochner, the latter wasn't even considered a significant decision by most commentators in 1905, because it was in line with extensive earlier precedent.

The Court's abolition of nearly all judicial protection for economic liberties under the Fourteenth Amendment ended up negating many more precedents than a reversal of Roe would. And the rights involved affected a wide range of relationships throughout the economy. A reversal of Roe might well have less sweeping consequences.

Eventually, in 1955, the Court decided that economic regulations were subject only to the most minimal "rational basis" scrutiny. That was a huge change from judicial approaches to economic rights from the late 19th century through the 1930s. For those keeping score, "rational basis" review is exactly the approach Justice Alito advocates for abortion jurisprudence in his draft opinion.

David Cole notes this history. But he contends it wasn't really a reversal of individual rights because, even though "Parrish took away some rights of business owners,…. its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations." Alito could easily use the same reasoning to justify reversing Roe: although it would take away "some rights" of pregnant women, the "real effect" of doing so is to protect millions of unborn children from being killed by the abortion industry. The same goes for Plessy v. Ferguson, the notorious 1896 ruling upholding segregation laws imposed on railroads (which Cole compares to a reversal of Roe): it, too, took away "some rights of business owners." But the "real effect," its defenders could have argued, was to protect millions of white southerners who preferred segregated travel facilities.

Pretty much any decision constraining individual rights can be seen as beneficial if viewed from the standpoint of supporters of the regulations it upholds, and those they claim would benefit from those laws.

In reality, the reversal of economic liberties precedents constrained far more than just "powerful corporations." It also restricted small business owners (like the immigrant owner of the Lochner bakery) and workers who preferred to work longer hours in exchange for more pay to working shorter hours for less; ditto for those who were forced into unemployment by the minimum wage laws the new precedents allowed. West Coast Hotel actual upheld a minimum wage law that applied to women only, thereby disadvantaging them in competition with male workers at a time of sky-high unemployment during the Great Depression.

I don't claim any of this, by itself, proves that the economic liberties precedents gutted by the Court were necessarily right. They had their flaws. But the issue was far from just a simple matter of helping workers at the expense of a few "business owners" and "powerful corporations."

Almost as famous as the Court's reversal of economic liberties' precedents was its gutting of the Contracts Clause in Home Building & Loan Association v. Blaisdell (1934), a case covered in most introductory constitutional law classes. The Court upheld a Minnesota law imposing a moratorium on home mortgage payments during the Great Depression, and thereby largely negated the Constitution's ban on state laws "impairing the Obligation of Contracts." In the process, the Court effectively reversed numerous precedents dating back to the early 19th century. Justice George Sutherland covered many of them in detail in his forceful dissent. Here, too, the Court undermined more and longer-established precedents than a reversal of Roe would. In the aftermath of Blaisdell, the Court gives Contracts Clause rights only slightly greater protection than that accorded economic liberties after the reversal of pre-1937 Due Process Clause precedents in that field.

Less well-known than West Coast Hotel and Blaisdell, is Berman v. Parker, the Court's 1954 demolition of Fifth Amendment "public use" restrictions on the range of purposes for which the government can condemn private property. Berman wiped out the previous understanding that the Public Use Clause imposed at least some some substantial constraint on the use of eminent domain to take property for transfer to private parties. Instead, the Court ruled that a "public use" can be pretty much anything the government says it is.

The consequences of Berman were catastrophic, including opening the door to the forcible displacement of hundreds of thousands of mostly poor and black urban residents through "urban renewal" and "blight" condemnations. Berman  also became the principal precedent justifying the Court's later, much-hated, decision in Kelo v. City of New London, upholding takings for private "economic development."

The extent to which Berman ran contrary to previous precedent was ignored by the Court, and is often overlooked even today. The history is too complicated to readily summarize here. But, for those interested, I cover it in some detail in Chapter 2 of my book about Kelo, The Grasping Hand. While not all the evidence covered in my book was known in 1954, the radical nature of a decision upholding the takings was obvious enough that, the trial judge in the case, District Judge E. Barrett Prettyman ruled against the condemnation and emphasized that the "extension… of the concept of eminent domain" demanded by  the condemning authority was "dangerous to basic principles of our system of government."

These three examples are far from the only ones where the Supreme Court has undermined or significantly narrowed rights-protecting precedent. Depending on how stringently we define the  concept of reversal, there could be many other similar cases. But these are three major instances where the Court massively undermined previous precedent protecting individual rights, to the point where the right no longer enjoyed more than very minimal judicial protection in the vast majority of situations. That isn't much different from what Alito proposes to do to abortion rights.

It's certainly possible to argue that a decision overruling Roe would be worse than West Coast Hotel, Blaisdell, or Berman. Perhaps abortion is a more important, more valuable right than those at issue in the the other cases. Perhaps Roe was a better-reasoned decision than the precedents undermined in the other instances.

But these three historical episodes makes it impossible to claim that a reversal of Roe would be wrong because the Court has never previously overruled precedent protecting individual rights. In reality, such reversals figure prominently in our legal history.

That does not necessarily prove these examples actually support a reversal of Roe. If you believe, as I do, that West Coast Hotel, Blaisdell, and Berman were serious errors that made things worse than they were under prior jurisprudence, you might conclude that history indicates the Court should not reverse rights-protecting precedent. At the very least, perhaps there should be a strong presumption against it.

In the unlikely event that the Court decides not to reverse Roe based on such a presumption, I would be happy to see it! But, of course, my view of these prior reversals is very much at odds with conventional wisdom, especially when it comes to West Coast Hotel and Blaisdell. Most jurists and legal scholars - especially those on the left - applaud these rulings.

Many progressives would also be happy to see a reversal of some other rights-protecting precedents. Citizens United v. FEC (2010), which struck down campaign finance regulations restricting corporate expenditures on election-related speech, is an obvious example.

If you support the Supreme Court's rulings in West Coast Hotel, Blaisdell, and Berman (or even just some of these), and hope it will someday reverse Citizens United, that's an entirely understandable position. But you cannot then simultaneously decry the potential overruling of Roe on the ground that it's inherently improper to reverse precedents in ways that contract individual rights.




NEXT: Thursday Open Thread

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  1. Ilya: "if the babies don't like getting murdered they can foot-vote to a new uterus!"

    1. Judge Kosinsky persuaded me to like Kelo. Who uses those public highways? Private profit making truck firms? So how are they different from Kelo?

      Kelo applies to chattel. It uses only the word property, not real property. Under Kelo, corpses can beseized to save 50000 transplant recipient who die on the waiting list. It certainly justifies the presumtive donation in the absence of formal refusal by the deceased. Such presumption have raised transplant rates 10 fold elsewhere.

      1. I suggest a new committee in each house of Congress, The Supreme Court Oversight Committee. The Congress should approve or void all judicial review in accordance with Article I Section 1. The Supreme Court stinks, and is often wrong.

      2. I would be fine in research of acephalous 500 liter test tube homunculi for organ harvesting.

  2. Liberals did themselves no favors when they didn’t expand the right to privacy to include the right to keep a gun in the home for self defense. So generally liberals are supposed to expand liberties but a liberty associated with guns was opposed by the liberal legal community based on pure partisan hackery.

    Scalia’s Heller opinion is just as absurd as Roe/Casey and it employed liberal constructionism in order to not strengthen the right to privacy by getting conservatives invested in that line of legal reasoning.

    1. Except 2A is an explicit stated right. Privacy is not. You can’t do anything you want in private

      1. 2A is a federalism provision that protects the state militias from a Lexington and Concord situation.

    2. This assumes the SC's decisions will be made in a consistent manner without regard for right-wing political goals, that they'd do what they said they were going to do. There is ample evidence that this is not the case. (See: any recorded pre-appointment interview where their view on Roe is covered.)

  3. Yes, and the Thirteenth Amendment took away the economic rights of slaveholders. This is backwards reasoning.

    1. But the 13th amendment was an amendment. Amendments change things, that's the whole point of them.

      So, yes, the 13th amendment took away some of the economic rights of slaveholders, and, yay! There was nothing legally illegitimate about that, the Constitution the Court is supposed to base it's rulings on had taken them away, it wasn't a case of the Court just saying on its own, "Screw economic rights, who needs them?"

      1. So what if it was the Court which enjoined slavery? Or any other kind of oppression? Somin would say it was curtailing the rights of the oppressors.

        1. Yeah, but we're discussing legal legitimacy, aren't we? Legal rights, not moral.

          In theory, at least, when a constitutional amendment changes the scope of a right, recognizing this isn't discretionary on the part of the courts.

          And the over-all point is that, yes, the Court HAS contracted established rights before, and without even an amendment to compel them to do so. So the claim that reversing Roe would be unprecedented is simply false as a matter of objective history.

          Regardless of whether or not you think those rights should have been contracted, they WERE established rights, and the Court took them away. In the case of economic rights, they went from quite substantial to practically nonexistent.

          1. The court did not take away the economic rights of slaveholders. That was done by the 13th amendment.

            Amendments are ratified through a rigorous democratic process. Thoroughly legitimate. This is quite unlike rights conferred by a temporary majority lifetime appointed Justices.

            1. A supermajority process to give the government power over rights. Whether even that should be sufficient is another debate. But it is beyond simple majority rule to quickly grind a right underfoot of the latest demagogue with the gift of gab.

    2. Amendments do not violate Article 1 Section 1, as all judicial review does. It gives all legislative power to the Congress. All Supreme Court legislating from the bench should be approved by Congress or be void.

  4. The ACLU's position isn't unexpected, given that their official stance on what's a right is just 'whatever we want to be a right, and nothing else'.

    1. How dumb were the white dudes that wrote Cruikshank?? Are all white dudes that dumb?? Asking for a friend. 😉

      1. Tell your friend he's a racist.

  5. I don't think pointing at judgments that overturned libertarian precedents that protected business owners at the expense of their employees, customers, or the general public is really the best way to make this point, at least not outside of a Federalist Society meeting.

    1. I'm sure the workers forced into unemployment during the depression by the aftermath of West Coast Hotel really appreciated that "protection".

      Let's face it, you're just wrong on the actual impact of government labor policies. Anyone who thinks minimum wage laws actually benefit low skill workers is someone who doesn't understand basic economics.

      1. On the contrary. Someone who thinks minimum wage laws hurt "low skill" workers only understands basic economics.

        1. Evidence that low-level wages are always inelastic?

        2. Also, evidence that a minimum wage that applies only to women doesn't hurt women? Especially during a depression.

        3. Someone who thinks minimum wage laws hurt "low skill" workers only understands basic economics.

          Fixed it for you.

          And, no, there is no "advanced" economics that magically transforms harm into help. This isn't a physics problem where the apparent result is merely an artifact of a simplifying assumption.

          1. No, it is the result of *only* making assumptions, instead of looking at real-world observations. If you want to make a physics analogy, it's the equivalent of saying that heavy things clearly fall faster, because they're heavier.

          2. Most people without an ideological axe to grind should intuitively understand Martinned's statement.

            "Basic" economics presupposes a lot of factors that don't exist in the real world. Which makes it really good for teaching theory, and very good for some basic modelling and understanding some things in aggregate. But "basic" economics does a very poor job of explaining how the real world works a lot of the time- otherwise, you would be able to easily model how the world works, and you wouldn't get all the "Three economists, four opinions" comments.

            So yeah, the blind belief that minimum wages are always a bad thing based on a simplistic idea of a supply and demand curve scrawled on an Econ 101 chalkboard and some notional idea of a price floor isn't the end-all, be-all that you think it is. Because ... well, because the economy, and the world, is more complicated than that chalkboard. That's the beginning, not the end, of the analysis.

            1. To be fair, a libertarian blog maybe isn't the best place to argue for realistic, evidence-based policy making over blind adherence to theoretical assumptions...

              1. Recall that libertarian thinking about economics has strong roots in Austrian economics, which largely rejects empirical testing of its conclusions.

                1. Feel free to natter about the edges, but we ran hundreds of century-long experiments with 15 billion test subjects demonstrating strong correlation between economic freedom and general health and wealth increases of the population.

                  This ignores that economic regulation is a danger flag, a reskin of corruption plaguing humanity through all history, and the source of lagging in the above.

            2. " But "basic" economics does a very poor job of explaining how the real world works a lot of the time- otherwise, you would be able to easily model how the world works, and you wouldn't get all the "Three economists, four opinions" comments."

              It's a model that does a good job of explaining how things are likely to work. If you put a floor on the price of labor, in the long term consumption of labor low-end is likely to decrease. If you have a better model, go for it, but you can't just hand-wave basic economics by screaming "advanced economics".

              1. If you have a better model, go for it, but you can't just hand-wave basic economics by screaming "advanced economics".

                Read Aunt Teefah's link. No one is hand-waving.

                1. Aunt Teefah's link makes a bunch of assumptions about monopolistic effects that aren't necessarily supported.

                  And in any event, if wages are being driven down by those effects, the solution is to decrease barriers of entry by making it easier to run businesses, not to create a price floor.

                  BTW this is still all basic economics.

          3. And, no, there is no "advanced" economics that magically transforms harm into help. This isn't a physics problem where the apparent result is merely an artifact of a simplifying assumption.

            You might look up "monopsony."

          4. "And, no, there is no "advanced" economics that magically transforms harm into help."

            There are, however, some people that actually study the issue, instead of just make shit up. And it turns out that, no, contrary to "basic economics", raising the minimum wage does not actually cause mass unemployment.

            1. It doesn't necessarily cause mass unemployment in the short term. It can do all sorts of things, like reduce labor participation at the margins, etc.

              In Europe, for example, it's very difficult for college or high-school students to find part-time work, and many people work under the table. These folks don't count as unemployed.

            2. Wow, somehow noahpinion missed the economic analysis of Seattle's switch to $15 minimum wage, which found that, in the short term, low wage workers lost hours, and in the medium term there were fewer jobs in lower-wage sectors. Meanwhile, costs to consumers went up for goods and services with significant labor costs - effectively diminishing buying power.

            3. A chart shows that most studies report minimum wage increases hurt jobs, and the takeaway is that there's a long tail of (probably low-quality) studies saying the other thing. Huh.

        4. Maybe you should familiarize yourself with the growing literature examining the effects of Seattle's minimum wage hike?

          For example:
          "Findings indicates that those earning less than $19 an hour saw wages rise by 3.4% once the city’s minimum wage was $13, while experiencing a 7.0% decrease in hours worked."


          Now, last I checked, a 7% decrease in hours worked vs. a 3.4% increase in wages = a loss of income.

      2. I'm sure then that you will be able to produce some citations showing that Parrish and the end of Supreme Court protection for "economic liberty" was followed by massive increases in unemployment and general immiseration of workers. After all, basic Econ 101 is totally a real science, definitely not just ideological claptrap meant to support the interests of the ruling class, so finding some supporting data should not be difficult.

        Oh wait, it turns out that the death of judicially-imposed "economic liberty" was almost immediately followed by decades of the strongest, most sustained increase in the standard of living for workers in US history. That's weird.

        1. Those "decades of the strongest, most sustained increase in standard of living for workers" had nothing to do with minimum wage (the ones who saw that increase in standard of living weren't being paid minimum wage). It was caused by a significant economic expansion.

          However, West Coast Hotel was in the middle of the depression. Separating it from those decades was a world war, a massive inflation spike during and immediately after the war (that likely made any minimum wage laws on the books from the 30s obsolete by the middle of the war), and a labor shortage caused by the war. (Then a demand spike after the war because of the Marshall Plan).

          The minimum wage upheld by West Coast Hotel certainly didn't do anything to pull the US out of the depression.

          I mean, what exactly is your proposed story that minimum wage laws from the 30s mattered at all for the increase in worker well-being in the 50s?

          1. "what exactly is your proposed story that minimum wage laws from the 30s mattered at all for the increase in worker well-being in the 50s?"

            I've asserted nothing of the sort. You claimed that the minimum wage laws sustained by Parrish caused a depression and higher unemployment. I merely pointed out that that is wrong.

            You claim that the post-New Deal economic boom "had nothing to do with minimum wage (the ones who saw that increase in standard of living weren't being paid minimum wage). It was caused by a significant economic expansion." But why was there a significant economic expansion? It certainly wasn't because of free-market economic doctrine. That growth came in the context of New Deal federal policies, more pro-worker state policies, and most importantly, the height of union power, none of which would have been possible had the era of judicial enforcement of right wing economic preferences not come to an end.

            1. Except we don't have a counterfactual version of the world without those federal policies. Maybe the growth would have been greater without them? Impossible to say. You're making causation claims that you cannot support with evidence. Especially since those same New Deal policies (and etc...) had been around for over a decade and hadn't ended the Great Depression (in fact, there's evidence the New Deal and other FDR economic policies made the depression last longer. Example: Just pointing out certain policies or programs are in existence at a particular point doesn't make them responsible for something that happened at that point.

              I also never said the minimum wage laws at issue in Parrish caused the depression, i said it was *during* the depression. And considering the specific law at issue in Parrish (as noted in the blog post) affected some workers (women) but not others (men), it definitely seems like a competitive handicap for women in the marketplace when men can offer to work for less than them.

      3. Let's face it, you're just wrong on the actual impact of government labor policies. Anyone who thinks minimum wage laws actually benefit low skill workers is someone who doesn't understand basic economics.

        The person you're lecturing is an economist. Your arrogant condescension may be a tad misplaced.

  6. Seems like the rights status of corporations—mostly what Somin is talking about—has always been regarded differently—and has always been more contested—than rights of natural persons. The analogy feels strained.

    Or, to put it another way, should critics of the Alito draft decision say instead that deprivation of a right previously held by natural persons, and never by business, is unprecedented?

    If the latter interpretation is a difference worth noting legally, then does that imply by analogy that deprivation of a right to keep and bear arms for self defense is likewise put in play by the Alito draft?

    1. Limits on eminent domain are not about "corporate rights", but primarily individual (natural person) rights. Similarly, West Coast Hotel Co. v. Parrish would never be yourself today because that law was a blatant violation of modern equal-protection jurisprudence (of individuals). And the changes in Contract Clause interpretation were all about contracts with natural persons on one side of the contract.

      1. *never be upheld today.

    2. How do you imagine corporations were the only ones affected by those reversals on economic rights? Owner-operated businesses have an owner who conducts his business as a natural person. Those owners had their rights constrained.

      (It's also not clear why you think two or more people who own a business together should have less rights than a single person who owns a business, even if we pretend that those reversals only hurt businesses with two or more owners).

    3. Because in Lathrop's world, all businesses are corporations.

      1. It also ignores that the status of corporations has changed over time.

        At the time the Constitution was adopted, the corporate form was, as I understand it, infrequently used. They didn't really become popular until after the Civil war.

        Subsequently, with the growth of tort law, almost all economic activity has migrated into corporations because it's highly perilous not to. But the government itself encouraged that migration, it wasn't spontaneous.

        So, yes, basically every business larger than a teenager's lemonade stand IS a corporation. Today.

        But if the government essentially forces people to form corporations to do business, it can't use the corporate form as an excuse to take away rights.

        1. "But if the government essentially forces people to form corporations to do business, it can't use the corporate form as an excuse to take away rights."

          Don't be silly. Of course it can. It shouldn't, but it most definitely can.

        2. the government essentially forces people to form corporations to do business,

          Nonsense. The government does no such thing. What it does is provide certain legal benefits to the corporate form which makes it very attractive for several reasons.

          1. And in a competitive market, lacking those benefits is fatal.

            1. Well, maybe.

              So what is your point about the government "forcing" businesses to incorporate?

              DO you think there should be no such thing as the corporate form?

              The fact is it would be very hard to build a large business without some privileges. Limited liability, for example, makes it possible to raise large amounts of capital because it makes investing safer and makes it easier for investors to become liquid.

        3. To be more specific, I doubt the growth of corporations was mainly stimulated by tort law.

          I think the growth was more because corporations are a good and convenient way for business to raise large sums of capital, which an industrial society demands. Limited liability has lots of advantages for that purpose other than shielding investors from torts.

    4. mostly what Somin is talking about

      No. None of what he's talking about is "the rights status of corporations."

  7. There is a massive difference between the right to control your own reproductive system and the right to screw over your employees.

    1. There is a massive difference between the right to enforce a legal contract and the right to kill another human.

      Man, this is easy.

      1. Ok now go find some woman and see how she views it. To you the uterus is some kind of exotic faraway planet.

        1. You don't get out much, do you? There are an awful lot of pro-life women.

          1. Yes but your analysis is alien even to them.

            1. Women are from Venus, men are from Mars, captcrisis is from Epsilon Eridani.

        2. My wife is a woman and I know how she views it after four children and two miscarriages. She sees it as killing a baby. She’s always been very vocal about that.

          The divide among women on this is as wide as it is for everyone else. Your assertion simplifies something that isn’t simple.

          1. Your wife is a dumbass.

            1. With bad taste.

        3. Women are more pro-life than men.

          1. In fairness, women are also more pro-choice than men.

      2. We could settle this easily by asking a pregnant man for his opinion. Or perhaps some guy who is being told by the government that he can't control his own body.

        1. Child support required from sperm donors. That'd do it. Or child support from unintended fathers who sire children because the condom broke.

    2. "There is a massive difference between the right to control your own reproductive system and the right to screw over your employees."

      Employees also have the right to work under conditions where they can find work.

  8. Just for the record (based on the leaked document), the ruling will not "gut a precedent that protects individual rights"; it will explain how that the "right" did not exist, but was made up by the prior court.
    Then it will go on to show how such a "right", can be created as desired at the state level, by elected representatives of the people. You know, like it actually says in the US Constitution.

    1. According to those on the left your comment is disinformation.
      If the draft accurately portrays the decision, birthing people seeking an abortion will be forced into back alleys and there will be a run on coat hangers.

      1. "birthing people" - is this really what our language is coming to?

    2. Tell me how Loving survives your analysis.

      1. That line of decisions relies on equal protection arguments, not emanations and penumbras. But I suspect you knew that.

        1. Right. I posted about that in the other thread. Most of the Loving opinion is based on Equal Protection. It could stop there. At the end, there is a small section about marriage being a fundamental right. Which is a second basis for the decision.

          You can read it here, don't believe me:

          So the whole meme of "this decision guts Loving" is misinformation. Equal Protection is expressly in the 14th Amendment. Nothing about the leaked opinion even touches that.

          1. And as I've pointed out, Loving was just undoing the damage from Pace v Alabama, which was part of the post-civil war Court's push to render the 14th amendment a nullity. It restored the legal status interracial marriage had between the 14th amendment's ratification and Pace.

            Loving is nothing at all like Roe.

        2. "But I suspect you knew that."

          Of course he does, he's just parroting the extreme fear mongering that the left is using here.

      2. My analysis is on the (leaked, draft) decision in Dobbs.
        I made no mention of Loving.
        How does Miranda survive your comment?

        1. US Constitution Amendment 5:

          No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

          Even before Miranda, statements made by suspects to police were supposed to be voluntary in order to be admissible in court.

          All Miranda did was create a formulaic short cut that lets the court say this statement by a suspect was voluntary.

    3. ... and then uncreated at the Federal level, once again overulling the states every time there's a filibuster-proof majority in the Senate and single-party rule.

  9. Somin repeatedly makes the statement that reversing Roe would be a case where the "Court reversed a precedent protecting individual rights, "

    Though I fail to see how banning or limiting abortion reverses any precedent protecting the individual rights of the baby that is being aborted.

    1. Since reading is apparently hard, let me show you a version of the 14th amendment that has all the (presently) irrelevant words omitted:

      All persons born (...) in the United States (...) are citizens of the United States (...). No state shall (...) deprive any person of life, liberty, or property, without due process of law;

      1. That’s the issue, isn’t it? When should rights attach to the unborn human being?

        I don’t pretend to have the correct answer for that, but I’d say it’s sometime before birth. The left with their “any time for any reason” philosophy is every bit as extreme as the “no abortion ever for any reason and you have to bury miscarried fetuses” right.

        1. How about at the state where shooting the mother through the uterus will result in charges for injury to the child?

          1. Fetal homicide laws exist in at least 38 states, with 8 states having no minimum time for the pregnancy.

            So there's no broad agreement even on that front.

        2. How about since you already admit it's a human being, work backwards from there?

      2. Amazing how people can turn into hyper literal textualists when it suits them.

        We're all orginionalists now, eh?

        1. I actually do think all lawyers worth the name are originalists. There's no way to do law that doesn't start with the written word.

          In the specific lexicon of US constitutional law "originalists" are people who claim that there is nothing else to do but read the written word, and that the written word doesn't include open norms like "due process", or a general statement vesting the "judicial power", i.e. the power to make law on a case by case basis through the common law/stare decisis method, in the courts.

          1. "Textualists" are a flavor of originalism. There are other flavors. all of them, though, start with the actual text. Hell, even the most living constitutionalists out there do that. It's ignoring the original public meaning and looking at the text alone that gets you sideways .

            I would say that the Federalist Society and others haven't been very good at "policing the boundaries" of what origionalism means.

            1. Originalism has a serious problem: It got up to speed too late.

              By that I mean that, by the time originalism got enough traction to be meaningfully applied, the war was largely lost: A huge variety of precedents contrary to originalism had been established, and had time to take root and create reliance interests. Our whole federal government is now operating on a basis that's flatly unconstitutional from an originalist perspective.

              Now, for a layman like myself, that's not really a problem. I can just look at the government as it's operating, and say, "That's illegitimate. We may not be in a position to fix it, but it IS broken." We can see that the whole edifice is rotten, and the realization troubles us, but doesn't create any problems in our lives.

              For legal scholars, on the other hand, this is a big problem, because they're trying to teach doctrines that will be applied. And to understand that the whole edifice is rotten, and it's NOT going to be fixed? It's horrifying. Can they really teach that in law schools?

              So the temptation to compromise the principles and make their peace with living constitutionalism, not just as a foe that triumphed, but in some sense or another legitimately so, is strong. You start getting doctrines like "constitutional liquidation" that try to rationalize that the system they're looking at isn't really illegitimate.

              And. They. Don't. Work.

              My opinion is that the Constitution, if not dead, is dying. We're in the end game for this constitution, they're hardly even pretending that they mean to follow it anymore, and there's no plausible path back to actually following it. It IS going to fall, sooner or later.

              Our job isn't to restore the Constitution. It's to diagnose how things went so wrong, so that the NEXT constitution will be more robust, and at least will fail in a different way.

              And part of that is establishing that the new constitution doesn't get interpreted away like the old one did, that formal amendment is the only way things get to change. Prospective originalism, because retrospective originalism just came too late.

              1. It's not that originalism got up to speed to late, it's that it's practitioners were unwilling to tamper with stare decisis. Living constitutionlist decisions, like the ones eviscerating the Commerce Clause, are like having a robber come into your house, but after sticking around for a while because you don't eject them, they claim part ownership.

                And while I sometimes hope for a balkanization, I'm lukewarm if it will happen or not. What I do agree with you, though, is that if the right starts doing, at the scale necessary to ensure victory, what the left already does, then we will see a more complete breakdown of order. I am not sure that the right has it in them.

                I have to say, though, that this "dark MAGA" stuff is heartening; if you have power, use it, because sure as the sun rises the other guys will.

                1. " it's that it's practitioners were unwilling to tamper with stare decisis."

                  Because too much of it had accumulated, that's what I mean by too late. If originalism had been in a position to contest living constitutionalism from the start, you wouldn't have this massive accumulation of precedents, it would have been a manageable amount they wouldn't have shrank from reversing.

              2. " My opinion is that the Constitution, if not dead, is dying. "

                Let's see how much traction the disaffected, bigoted, autistic malcontent view can develop in modern America.

          2. I think that's an exaggeration. Originalists are people who deny that the common law/stare decisis method overrides the actual text. Insist that if you want to change the meaning of the law, you have to formally change the words.

            As an example, due process is actually in the text, and is a right to proper procedures. What isn't is substantive due process, a right to specific outcomes if that procedure is followed.

          3. "In the specific lexicon of US constitutional law "originalists" are people who claim that there is nothing else to do but read the written word,"

            No, that is a straw-man characterization of originalism. The text must be read in the context of its history and how it was understood at the time of its passage.
            A good example of that, which I just realized the other day is a great example of originalism, is the Supreme Court's opinion in Calder v. Bull (1798).
            The justices who wrote that lived through the American Revolution and the adoption of the Constitution, so that is a good example of how legal reasoning occured at the Founding .

      3. The rights of the unborn baby are not based on the 14th amendment but their humanity.

        Humans have a right to life. No constitution needed.

        1. Unless you are prepared to jail a woman for negligently generating a miscarriage (by exercising too energetically, for example), your position is just the type of superstition-laced nonsense one would expect of a lawyer mired in Can't-Keep-Up Ohio, proofreading deeds of $37,000 houses, later in his "career."

    2. Not the baby, the mother's rights are limited.

      1. Temporarily, sorta, maybe, but as a natural and predictable outcome of certain actions, while those of the baby are permanently eliminated.

        1. "while those of the baby are permanently eliminated."

          By allowing abortion, not by banning it. And it's an open question as to whether an unborn baby has any legally recognizable rights.

          1. The Court can only make decisions on the cases in front of them. Get the right case, and it could happen with these 5 justices. Frankly, it's a compromise to push the issue back to the states.

            1. "it could happen with these 5 justices."

              Maybe, but there is zero evidence that it has happened in the Dobbs decision.

              1. Let me propose an untestable hypothetical: if the five votes to overturn Roe were of the mindset of the constitution as a living document as those who gave us Roe in the first place (finding a right to privacy not in the constitution to do so) these 5 justices would find a right to life of the fetus via the same sort of reasoning.

                1. Your hypothetical is completely unjustified and unsupported speculation. Nothing more.

  10. Reversing Roe is an expansion of individual rights though.

  11. I don't know why the left is upset at Alito's opinion, it's just a clump of words.

    1. I see Alito's position as a mixed bag.

      It would cause some problems in the short term.

      It might precipitate a long-awaited, decisive reckoning in the longer term.

      I am content to let time sift this. Of course, that's easy for me to say, being on the right side of history, the winning side of the culture war, and the favorable side of demographic trends.

  12. This whole is it a baby thing? is hogwash. Of course it is. Definitely after viability

    So a mother who wants the baby has an issue at 28 weeks. They do an emergency C section baby is taken to NIC and survives

    A mother who doesn’t want a baby at 38 weeks because “whatever” has the baby ripped out and killed because it is definitely alive at that point

    No moral case for this. Take second baby to NIC same as first

    1. So the definition of "personhood" is a function of the state of medical technology?

      Before caesarian sections and neonatal ICUs, the threshold for survivability was birth - and even that was fraught with peril. When NICUs were first rolled out, survival at 28 weeks was hopeful at best. Now it's routine and survival at 22 weeks is hopeful. Does that mean your threshold of personhood should actually be set at 22 weeks? What is the implication of that position as technology continues to improve? Will it become 18 weeks? 16? 14? 6? Who decides?

      Personhood is a difficult moral decision that we have struggled to answer for millennia. I don't know what the right answer is but trying to tie the answer to an ever-changing state of medical technology does not seem like a workable solution.

      1. "So the definition of "personhood" is a function of the state of medical technology?"

        No, the definition of "personhood" is a function of the state of law.

        Neither the question of when life begins, nor the question of viability is relevant.

        1. Yes - and the current state of law effectively defines the start of "personhood" at "viability". But, and this is where it gets unworkable, it does so at a level of what was viable decades ago.

          Wreckinball is proposing (and I am challenging) a normative answer to what the state of law for the definition of "personhood" should be.

      2. If you can remove the baby alive do it. Only the folks who wish to obfuscate fight this.

        1. You appear to ignore whether a woman wants her belly cut open or not. Should she get a say in what surgeries she'll accept and which she will not? Or is the state going dictate which medical procedure she will have?

      3. Personhood is a difficult moral decision that we have struggled to answer for millennia. I don't know what the right answer is but trying to tie the answer to an ever-changing state of medical technology does not seem like a workable solution.

        What's better? When fundamental rights and interests compete, line drawing can be the least bad solution. Tying abortion rights to viability is a principled way of drawing that line, even if the line migrates over time. That doesn't mean it won't be difficult to pin down and/or create outlier errors, as most line-drawing exercises do. But again, short of hand-waving out of existence either of the competing sets of rights, what's the alternative?

    2. Viability varies depending on how you define it, so that doesn't solve the problem.

      There are currently healthy living people born at 20 weeks. Should that be considered the "viability" point?
      But US medical care doesn't get the survival rate above 50% until 22 or 23 weeks. Should that be the "viability" point?
      Oh, wait - most of the rest of the world admits to a 50% survival rate at 24 weeks. So why would we wait until 28 weeks? Because that's what it was 50+ years ago?

      1. Probably worth mentioning that the US has the highest infant mortality rate among western nations. Pro-life for the win!

        1. Ah, yes, the old "infant mortality" canard.

          Here's another fact: The US has the highest survival rate for children born in the US in the world. That's right, a child born in the US is more likely to survive than the same child if they were born anywhere else.

          So how can this be true at the same time that infant mortality is "the highest"?

          Well, it's all about playing with definitions and demographics.
          See, the US uses a definition of the term "live birth" that includes far more children born than other countries. In the US, a 16 week premature birth - zero chance to survive - is still considered a live birth if it has a heartbeat for a few seconds, or anything else to show it wasn't already dead. Most of the rest of the world doesn't count that, because it had no chance to survive.
          The second factor is demographics. See, the US has far higher rates of childbirth among women that are quite old or quote young. And by "far higher" I mean upwards of 10 times as many compared to other first-world nations.
          And children born to the very old or very young are much more likely to be born premature - again, 5 to 20 times the rate.

          Ignoring demographics and definitions in this topic is incorrect. It's a popular tactic amongst the anti-American crowd, but it is false, deceptive, and utterly dishonest.

          But now you know better, so you'll never make this claim again, right, shawn?

  13. Creating a right is not a SCOTUS job. That’s what rescuing it does. It returns it to the states.

    If you want to establish a right amend the constitution like was done for womens right to vote.

    1. So many of the left's cultural victories have come from the courts, that this approach of democratic, majoritarian change is sort of an anathema. Don't mention the Electoral College in this context, because then, majoritarian politics is totally the way to go. .

      1. Electoral college is in the constitution. Our three coequal branches have different defined duties.
        SCOTUS defined duties do not include amending the Bill of Rights that is inventing them

        1. To be fair, the Electoral College as practiced for a couple hundred years is a bit different than what was intended, but yea.

          1. And see we have different opinions. I think its a great system. Note that none of the small states would have signed the constitution without it. Its explicitly stated and thus would need an amendment to reverse like voting vs selection of senators.

            If its super popular you'll have no problem with that amendment. I'm thinking not though

            1. I actually prefer the electoral college to a straight nose count. But I think Madison read into The Republic to much with the original design of the Electoral College. You can't artificially create a natural oligarchy.

              I guess how it works now is okay, all things considered, once you take into account voter fraud.

              1. Voter fraud? Are you referring to Mark Meadows, to his wife, or to both?

            2. You can solve an intensifying problem associated with the Electoral College -- the undeserved structural amplification of hayseed votes -- without amending the Constitution.

              Admit a few new states. Maybe they won't be full of uneducated bigots.

              Increase the size of the House of Representatives (to reflect the increased population).

              This will not be as difficult as some seem to believe.

  14. Fetuses aren't persons with rights, and Alito won't recognize them as persons with rights outside the confines of abortion.

    Should a cop, for example, cause a woman to miscarry by using excessive force to effect an unlawful arrest, Alito will vote to ensure neither she nor the expired fetus gets a remedy. The same is true of the others likely in the majority on this decision.

    1. Why would he not allow a remedy? It's a straighforward case of bodily injury to the mother, the same as if she lost a spleen or some skin.

      1. Shhh. Don't confuse him with simple facts or logic. He is on a rant.

    2. "Fetuses aren't persons with rights, and Alito won't recognize them as persons with rights outside the confines of abortion."

      Technially, Alito's draft opinion doesn't recognize fetuses as persons with rights even in the context of abortion. He leaves that question to the individual states.

    3. Fetuses are not people because you say so? Why? You mean if this court invented a right to life out of thin air like Roe did for abortion you wouldn’t be happy? Of course not. That’s why the court should not invent rights

      Fetus rights or non rights already exist in the laws of the 50 states.

      It’s not in the US constitution and should in total be controlled by the states. Roe needs discarded in the same bin as Dred Scott

      1. You're perhaps confusing that under the Constitution, women are definitely people with rights, the question in Roe was the extent of their right to have autonomy over their own body vis a vis the right of the state to control her body. The Constitution specifically identifies people as persons "born", hence, granting personhood to fetuses is directly contrary to the text of the Constitution as well as the entire history of the jurisprudence of the United States (which is not the case with expanding the rights of people to have autonomy over their own body.

        Granting rights to a non-person under the Constitution which supersede (which the abortion laws prohibiting abortion even in cases of danger to the health of the mother) or which are coequal with those of a person under the Constitution is about as radical a departure from originalism (in any form) that you can get and is not, in fact, remotely analogous to Roe which didn't recognize a new category of persons with independent legal standing under the Constitution.

        You're just giddy about abandoning all principles because you, incorrectly, think the Roe majority abandoned all interpretive principles. They didn't. They just said that people (i.e., born persons) have rights that were not enumerated in the text of the Constitution (which is an uncontroversial position) and one of those rights was autonomy over their reproductive system (a more controversial position).

        1. …, in correctly, think the Roe majority abandoned all interpretive principles.

          Being intellectually honest is important

          Roe v Wade “fails even to consider what I would suppose to be the most important compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the centre of Western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death.”

          - Archibald Cox “ The Role of the Supreme Court in American Government”, 1977

          Solicitor General for John F. Kennedy
          Watergate Special Prosecutor
          Attorney / Harvard Law Professor

          1. Intellectual honesty would require recognition that the sanctity of life included the woman's life, too, and that the costs (monetary and non-monetary) of childbirth have a lasting impact on that life. Further, the new crop of anti-abortion laws are moving the needle from allowing abortions when there is a risk to the life of the mother to only if the mother is in imminent danger of death to no exception for the life of the mother at all. Where, in this "sanctity of life" equation does the mother's life fit in?

        2. Everyone has rights. Just not the right to end another life unilaterally. You’re just giddy to suck the brains out of full term babies

          1. suck the brains out

            Is that what happened to you?

        3. Although I agree with the argument that the fetus is not a person and thus a woman's liberty right to control her body trumps a fetus' right to life (at least early in a pregnancy), I'm inclined to the position that the courts should not have determined whether a fetus is a person. This is a philosophical question for which the courts are not better suited than the elected branches in deciding.

          That being said, I would not reverse Roe because of stare decisis and if Roe is reversed would strongly support a federal law guaranteeing abortion rights (at least early in a pregnancy).

        4. So it appears you’ve definitely labeled the baby a non person. Which by all evidence they are a person.

          See that little leap you made there. What court ruling states that?

    4. Most states have laws against harming a fetus (outside of abortion).

      I don't know why you think Alito or the others supporting overturning Roe would try to overturn those laws. Do you have any quotes from him to suggest it? Maybe previous court rulings, or legal writings?

      1. He’s making it a states issues. He’s over turning no laws. That would be up to the states. Why do you think this is a job for the black robes

  15. There is no right to murder another human being.

    Considering his writing, it's almost like Ilya Somin does not understand rights.

    1. Patently false. He understands everyone has a right to migrate to somewhere they're not a citizen, because of economics you see.

      Say that the baby has a right to "foot vote" and that the mother has no right to restrict migration into her womb, and there you go, he would get it.

  16. I'm with you on the Takings Clause point. I would throw in cases upholding "qualified immunity" against civil rights claims and the due process work-around we call "civil asset forfeiture" as situations in which the courts have chipped away at fundamental rights and liberty interests.

    I think the "economic liberty" comparison is a bit more strained, and largely begs the question. You mention in passing that employment law constrains individuals' rights to be exploited in whatever way they please, but that's not generally how workers would view the trade-offs.

    We have fundamental constitutional rights for a reason - to protect those rights from the whims of majority rule. Whatever the majority thinks, I should be able to voice my opinion on any matter of public import, I should be able to practice my faith (or lack of faith) freely, I should be able to own and use firearms in my self-defense, and so on. Constitutional rights are a way of "correcting," in other words, a power imbalance that can arise between unpopular groups and dominant majorities, where those rights concern matters of fundamental liberty and autonomy. That's why the privacy rights cases are so important - there's no end to the ways in which so-called "conservatives" would like to regulate and dictate how the rest of us act in private. But how we act in private is profoundly central to what it means to be "free." If we cannot freely do as we please in private, we are living in a totalitarian state.

    Laws regulating employment are intended to achieve a similar result - "correcting" a power imbalance between individual workers and the people and entities that hire them. "Voting with your feet" is meaningless if every possible employer follows the same practices and if you're economically dependent upon having and keeping a job. Some people may prefer to work 60-hour weeks for more overall pay rather than to be limited to 40-hour weeks for less overall pay, because the 20-hour difference has to be paid at a higher rate that makes it more economical to hire another person. But no one wants to be forced into that situation by employers - who in such a scenario wouldn't need to pay more for the longer week, either.

    So, I think that the cases reversing Lochner are actually freedom-promoting, insofar as freedom is not just a matter of what the law says, but how that law is lived. The "right" to negotiate whatever employment arrangement happens to work for me is meaningless without leverage. Employment and labor law either gives workers that leverage, or sets out some basic employment terms worked out through the democratic process.

  17. PA law after 24 weeks illegal
    NY law legal full term
    MS law after 15 weeks illegal , the one in dispute presently

    Obviously the people in these states who elected their state governments disagree.

    Who’d a thunk it that people in these 3 states have different views on things?

    Always have always will. That’s why we have 10A
    Not mentioned in the constitution reverts to the states

    That’s all overturning Roe will do. As it should be

  18. I have a little bone to pick I don't think this is correct "Plessy v. Ferguson, the notorious 1896 ruling upholding segregation laws imposed on railroads".

    The segregation was not imposed by the railroads, it was imposed by the state of Louisiana which required that railroads have separate cars for blacks and whites and the railroads, which may have segregated passengers anyway didn't want to haul around extra cars. There is some evidence that the railroads helped set this up as a test case. There was also at least one glimmer of hope in that decision - an acknowledgement that states were required to provide the same benefits and services regardless of race, at a time when many states provided little or no public schooling for black children, among other benefits .

    1. He says "imposed on railroads", not "by" railroads, so he's not disagreeing.

  19. Ha ha the new buzz word “reproductive rights”
    Not in the constitution

  20. Another rousing meeting of Volokh-Class Libertarians For Statist Womb Management And Big-Government Micromanagement Of Ladyparts Clinics.

    Carry on, clingers. So far as your betters permit, though, and not a bit further. Thank you for your continuing compliance.

  21. Perhaps Roe was a better-reasoned decision than the precedents undermined in the other instances.

    Well, since Roe was a pathetic dumpster file of lies and illogic, it's not possible for any decision to be MORE poorly reasoned

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