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Abortion

Akhil Amar on the Draft Dobbs Opinion

A prominent progressive law professor challenges some of the prevailing orthodoxy on Roe, Dobbs, and Supreme Court precedent.

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Over the weekend, Yale law professor Akhil Amar had a substantial essay in the Wall Street Journal discussing the leaked draft opinion in Dobbs by Justice Alito that would overturn Roe v. Wade. Professor Amar is one of the nation's most prominent constitutional law professors. He is fairly progressive, but also considers himself an originalist. As a consequence, he sometimes breaks with prevailing academic sentiments, and he did so here, arguing there is "nothing radical, illegitimate or improperly political in what Justice Alito has written."

While some commentators have claimed the Dobbs draft would represent a dramatic break from the Court's prior treatment of precedent, Professor Amar claims there was not "anything unusual" in the draft's treatment of precedent.

Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.

Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.

Amar could have added that, since John Roberts has been Chief Justice, the Supreme Court has overturned precedents (and invalidated federal statutes) at a measurably lower rate than did the Rehnquist, Burger, and Warren Courts.  This could well change in the years ahead given the Court's current composition, but it has not yet. Overruling Roe would be quite significant--and would almost certainly be the most consequential overturning of a precedent to date in this century--but it would not represent a dramatic departure from the Court's recent approach to precedent.

Unlike most of his colleagues on the Left, Amar believes that Roe should be overturned (or at least substantially rethought). He writes:

Today, the Supreme Court's 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.

Professor Amar also disputes some of the fear-mongering about what overturning Roe would mean for other constitutional rights. As he also noted in a recent episode of his podcast, many of these claims are quite unfounded.

Does Justice Alito's draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court's precedents on contraception and interracial marriage?

It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were "deeply rooted in the Nation's history and tradition." These watershed rulings were once controversial in conservative constitutional circles, thanks to the influential work of Robert Bork, but now they are safe.

Amar goes on to explain how the draft opinion provides a ready basis to distinguish cases like Griswold v. Connecticut and Loving v. Virginia. Unlike abortion, rights related to marriage are "deeply rooted in the Nation's history and tradition," and there is no widespread political movement seeking the reversal of the precedents. Loving also rests on an Equal Protection rationale that, if anything, has become stronger over time. The current Court is arguably even more hostile to explicit race-based classifications than its predecessors.

Amar concedes that "the draft's logic could be seen to undermine the Obergefell decision" recognizing a right to same-sex marriage, but does not think that decision is under threat either. He notes the increasing spread and acceptance of same-sex marriage and that marriages implicate more substantial reliance interests (as that concept has been traditionally understood in the law) than does a right to abortion.

Amar closes with some broader points about the Court, and persistent progressive attacks on it.

Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh's nomination to the Court, remains true: "Americans generally and with good reason view today's Court more favorably than today's Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today's President and Congress say the same?"

In short, I am a Democrat who supports abortion rights but opposes Roe. The Court's ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I'm wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.

NEXT: Today in Supreme Court History: May 16, 1918

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  1. I would imagine that now many Normal Parents are seeing the Homo Agenda up close and personal with their school children that LGBTQP acceptance will retrace back towards tolerance and then, hopefully, back towards intolerance and Amir's prognostication will be incorrect.

    *fingers crossed*

    1. Sadly, the news coverage and commentary simplifies matters and reduces these concerned parents into reactionary bigots.

      1. Keep messing with people's kids, see how "reactionary" they get...

        1. All-talk right-wing bigots are among my favorite culture war casualties . . . and the precise target audience of a white, male, Republican-conservative, faux libertarian blog with a scant, vanishing academic veneer.

          If you get really upset, clingers, ask Prof. Volokh to censor those who make fun of or criticize conservatives. He has done it before. He will do it again.

      1. Thanks for the laugh this morning-- I needed that!

    2. You’re a bad person.

      1. Chances are he's erected an impervious barrier to self-reflection. The more people tell him what a vile POS he is -- and I'll bet a lot of people tell him -- the more convinced he is of his brave rectitude.

    3. Who the fuck wishes for intolerance?!

      How do you not have an 'are we the baddies' moment?

      1. Uh, what do you know about the Paradox of Tolerance?

        1. That it's a fairly clever distraction.

          Nobody should go to jail for being intolerant, but they shouldn't be setting policy either. Thus resolves the paradox of intolerance.

        2. Ah yes, the famous lesson from the Paradox of Tolerance:

          'intolerance is actually good.'

          1. It's "Good Trouble" you could even say.

            Especially when it's to protect children.

            1. Haha, no.
              Being an asshole to gay people is not civil disobedience for some noble cause. The cause is intolerance, not tolerance.

              In the end, you're just being an asshole in service of future assholery.

              1. Being an asshole to gay people who are grooming children in secret is the Good Intolerance.

                1. Hoary old debunked tropes don't justify anything. They are, in fact, an independent assholeishness.

                  Congrats on adding to the many ways you're an asshole.

    4. "I would imagine that now many Normal Parents are seeing the Homo Agenda up close and personal with their school children that LGBTQP acceptance will retrace back towards tolerance and then, hopefully, back towards intolerance"

      The Volokh Conspiracy repeatedly censors comments from non-conservatives, yet not a single faculty member associated with this blog will say a word about this bigoted comment (or any of the thousands like it, with our without a vile racial slur).

      Not the strident clingers who have become the Volokh Conspiracy's leaders. Not the one-trick partisan ponyboys who visit periodically. Not the more reasonable conservatives, some of whom have tried to distance themselves a bit from this white, male blog as it has descended into uglier depths of the clingerverse. Not one of them.

      What a bunch of cowardly culture war casualties.

      Continue to stick with the half-educated, disaffected, right-wing bigots, Volokh Conspirators. It appears to suit you precisely.

    5. Maybe next you could do blacks rape white women, Jews drink the blood of Christian babies, and Catholic nuns cover their heads to disguise the horns.

      1. I like how you act like there aren’t kernels of truth in any of those tropes.

        1. Oh really? There are kernels of truth in the claim that Jews drink the blood of Christian babies? And that Catholic nuns have horns? I'm almost afraid to ask your views on blacks raping white women.

        2. Please, expound on these kernels of truth, BCD.

          1. Well Jewish priests do suck the penis blood of little babies, the Pope probably is the closest thing we have to Satan personified, and statistically speaking ... (dot dot dot)

            1. ...(dot dot dot)...
              ... 67% of rapists are white?
              ...a higher percentage of black women are raped than white women?
              ...

              1. Recent content -- posts and comments -- indicates that when I observe that this white, male, right-wing blog has deteriorated into a flaming shitstorm, I may be being unfair to flames and shitstorms.

  2. Opinions like this won’t make headlines or get people watching news coverage. This is sad. I wish all political and issue discussions could be as sober and mature.

  3. Amar's account of "deeply rooted in the Nation's history and tradition" seems to be 'has wide popular support over the recent years' and, perhaps, limited enforcement of prohibitions. That is an interesting interpretation of the phrase.

  4. To say that the rulings allowing gay marriage and interracial marriage were justified because they fell within the long tradition supporting "marriage rights", is to give a very wide definition of "marriage rights". Both rulings were big jolts to large parts of the country. But we're told now they were within a "deeply rooted" tradition.

    But we are also told that allowing abortion is not justified because there is no similar tradition. Suddenly "abortion" becomes a very narrow topic. If you're going to be this expansive, you must point to the tradition as to the law of female bodily autonomy. That tradition cuts against allowing women to do things to their bodies, such as the birth control pill, IUD, etc. (Griswold is only 8 years older than Roe.) There might not be much sentiment for overturning Griswold now, but we've seen the ground shift in significant ways before.

    1. Fret yourself to death over nothing if you want. There’s nothing to make one think that those rulings are in danger. Hell, Griswold and Loving have equal protection cover as well.

      1. While I agree that for political and practical reasons it's unlikely to see the Court overturn those cases in the near future - that'd be an incredible tactical blunder - I don't like the lack of a limiting principle.

        And no 'rights related to marriage are all deeply rooted' is not a limiting principle. It's barely coherent, and it's also not true.

        1. Equal protection covers the marriage cases quite nicely. Remember, just two years ago Gorsuch wrote the opinion that extended Title VII protection to gays and transers. Without him, you’re not gonna get 5 votes to overturn gay or interracial marriage.

          People are screaming this irrational crap to fire up their base. Yet another reason I hate politics. Try to force a partisan to be rational and objective and they’d self combust.

          1. Equal protection does not cover the gay "marriage" -- as you were told at the time gay men could still marry women -- you know -- what a marriage really is.

            The pure evil that is Obergefell ain't going anywhere but with constitutional rational required it would fall.

            1. What is pure evil is your attitude toward gay people.

              Equal protection clearly covers gay people in light of Bostock. Gorsuch wrote the opinion. Despite your irrational hate, gay marriage ain’t going anywhere.

              How about you just live your life and leave others to live theirs?

              1. Bostock was wrong -- the ERA never would have been proposed!

                I am not the one that is using government guns to enforce my views of homosexuality, you are. Leave others and their lives alone indeed!

                PS: I am a libertarian, my views are that any 2 or more individuals may enter into any relationship that they choose as long as they do not infringe on the rights of others.

                PPS: Libertarian does not equal libertine!

                1. No one's going to shoot you for thinking whatever vile nonsense you do about homosexuals.

                  For a libertarian, you sure do pick and choose which rights you support to the point it looks a lot like you're advocating for a really socially regressive legal system.

                  The 1950s was not a paradise of liberty...except for us white dudes.

                  Not to mention your general burning hatred for Dems and your generally being okay with Trump is a tell.

                  Yes, I know these labels like liberal leftist conservative libertarianism are basically meaningless these days, but you are a partisan of the right and it's pretty ballsy to claim libertarianism.

                  1. You celebrate evil ... I recognize that people have a right to choose evil. You make a ton of assumptions and there is no more partisan on this board than you. Republicans are occasionally-effective speed bumps on the Democrat's road to totalitarianism, nothing more.

                    I support the right of human individuals to self-determination and making choice for themselves. I will never celebrate doing wrong -- in myself or others. Doing is wrong. Always.

                    1. The right to abortion is the right to self-determination.

                2. Bostock was wrong -- the ERA never would have been proposed!

                  Bostock was a statutory decision, not a constitutional one. The proposed ERA has nothing to do with it.

              2. Why are gays covered by other romantic configurations excluded?

                1. But other*

                  Damn you autocorrect

                2. Because the LGBT community did the hard work, plead their case, changed minds, and passed laws? If other "romantic configurations" want in on the fun, the road is better paved for them now and all they have to do is make their case.

                  1. Assuming the US army isn't mobilized against them again, of course.

              3. How about you just live your life and leave others to live theirs?

                I've always (for my entire adult life) favored legalized SSM as a matter of public policy, though I would have preferred it to be done via legislation rather than a poorly-supported (IMO) court ruling. That said, having the state license and sanction personal relationships is the very opposite of leaving others to live their lives, so your comment makes no sense at all.

                1. legalized SSM

                  Let me correct myself here. I often (as I've done here) fall into the trap of referring to the issue in terms of "legalizing" a particular type of marriage, when that is not even remotely an accurate description. The issue is one of legal recognition by the state of such certain types of marriages (and not others), as marriage itself has always existed as an institution independent of the state, subject to social/religious norms and customs. The state's involvement is not in the permitting/disallowing of marriages, but in conferring (or not) upon them a set of legal protections/rights/privileges as a public policy tool.

                  It's similar (albeit for different reasons) to a group of people who share a specific set of beliefs declaring themselves to be a religion and their gatherings a "church". Anyone can do that and the state has no say in the matter. But if that "church" wants to enjoy tax-exempt status in its dealings (assuming money is involved in its operation) that's where state recognition of it as being a religious institution matters, which has nothing to do with the existence of the church being "legal" or "illegal". Similarly, any two (or more) consenting adults can live together in a state of "marriage", with that taking whatever form they wish and the state has no say in the matter. What the state DOES have a say in is whether or not that arrangement enjoys the aforementioned legal benefits, which are conveyed by the state not because they are some sort of fundamental human right, but because the state has deemed doing so useful in furtherance of public policy goals.

                  1. Similarly, any two (or more) consenting adults can live together in a state of "marriage", with that taking whatever form they wish and the state has no say in the matter.

                    Well, it did have a say in the matter until Lawrence v. Texas.

                    1. Well, it did have a say in the matter until Lawrence v. Texas.

                      Which is a bit of a pedantic point since I'm speaking about law that is consistent with COTUS, not those that not only contradict it but are not even enforced to any meaningful extent. Yes, legislatures at all levels routinely enact statutes that run afoul of the principle of protection of inherent individual rights, but those are mostly aberrations that are eventually corrected by the courts (are at least should be). It's not like homosexual couples were being carted off to jail in TX prior to Lawrence save for the instance that instigated the Lawrence challenge...which is why it took three decades for such a challenge to occur after the statute was enacted.

                    2. It's not like homosexual couples were being carted off to jail in TX prior to Lawrence save for the instance that instigated the Lawrence challenge...which is why it took three decades for such a challenge to occur after the statute was enacted.

                      Or maybe it took three decades for such a challenge to occur after the statute was enacted because SCOTUS said in Bowers, 17 years earlier, that such laws were constitutional.

                    3. Or maybe it took three decades for such a challenge to occur after the statute was enacted because SCOTUS said in Bowers, 17 years earlier, that such laws were constitutional.

                      So you're saying that Bowers was such a powerful decision that it traveled back in time and prevented any challenges to the TX law for the 13 years prior to the decision itself?

                      No, it's because the law simply wasn't being enforced.

                  2. If someone were to hold themselves as married to multiple people, but not ask for any state-recognized benefit of that polygamist marriage, doesn't the state actually prohibit this to the point of potentially putting you in jail for it? Same with interracial marriage pre-Loving. I don't think it's correct to say that the government doesn't need to allow people to get married, when in many cases it has done the opposite and made certain forms of marriage illegal.

                    1. If someone were to hold themselves as married to multiple people, but not ask for any state-recognized benefit of that polygamist marriage, doesn't the state actually prohibit this to the point of potentially putting you in jail for it? Same with interracial marriage pre-Loving.

                      Well, there is the Edmunds Act, a federal law that hasn't been enforced since 1906 (the last conviction under the act). And a federal court struck down the "cohabitation" portion of Utah's anti-polygamy statute as unconstitutional, essentially gutting the law. So the only real prohibition is on engaging in multiple state-sanctioned "marriages". Simply living together in an arrangement of marriage without the legal trappings is A-OK. And I suspect you'd be hard-pressed to find any other states actively attempting to prosecute people living together in such arrangements.

                      But there are also statutes still on the books in several states prohibiting sexual relations outside of wedlock. Are those enforced...at all?

                2. My attitude has always been that the government has zero business telling two competent adults who they can and can’t marry. The fact that two guys decide to get married has no impact on me or anyone else.

                  Unfortunate that kitty had to be done through the courts but we fill our legislatures with people who no are convinced that they should tell us what to do, so I’ll be happy with the right outcome regardless of the process.

                  Regardless of what is explicitly in the constitution there is an obvious lean in the document toward liberty.

                  1. My attitude has always been that the government has zero business telling two competent adults who they can and can’t marry. The fact that two guys decide to get married has no impact on me or anyone else.

                    Did you even read what I wrote? The government doesn't tell anyone whether or not they can marry. It decides what type(s) of marriages qualify for state benefits, just as it does for a great many other things. Why is that difference so difficult for people like you to grasp?

                    Unfortunate that kitty had to be done through the courts

                    It didn't have to be done through the courts. A set of justices decided it wanted to do it.

                    but we fill our legislatures with people who no are convinced that they should tell us what to do

                    While true, it's not relevant here, as there were no laws against any set of consenting adults living in a state of "marriage". Government benefits applied to one particular type of arrangement. SCOTUS simply expanded that set by one.

                    , so I’ll be happy with the right outcome regardless of the process.

                    Ah, the old "The ends justify the means, no matter what" rationalization.

                  2. Why exactly two?

              4. Meanwhile, back in the land of living your life and leaving others to live theirs:

                Wisconsin middle schoolers accused of sexual harassment for using wrong pronouns

                https://www.washingtonexaminer.com/restoring-america/community-family/wisconsin-middle-schoolers-accused-of-sexual-harassment-for-using-wrong-pronouns

                1. What makes you think I favor that idiocy? It has nothing to do with SSM.

                  1. The push to recognize gay "marriage" was never about leaving people alone, but to use government force to radically change culture to celebrate a whole range of issues related to homosexual sex (and gender "identity.")

                    You were warned...

                    1. So linked only by your certainty of what the secret agenda is.

          2. I think we're talking about two different things. I agree the Justices (or at least 5 of them) don't seem willing to overturn the current structure.

            My concern is about the logic - if the draft opinion's reasoning is followed, then all these fundamental rights recognized over the past century are open to attack.
            I find the need for such muddy language as 'rights related to marriage' and such handwaiving as 'are deeply rooted' to be telling - they show the lack of a coherent structure to distinguish the logic in the Dobbs draft applied to privacy/abortion from similar logic in this case.

            Maybe the answer is indeed equal protection, but if so you need to do some work to shore up a lot of typically opaque Kennedy opinions with some serious 1800s history and formalistic guidance for lower courts!
            Which seems a ridiculous project to me; deep dives into the culture of the 1800s to figure out what our society's rights are is a weird non-sequitor to my mind.

            But it's better than deep dives into the 1700s, I suppose.

            Bottom line - I agree with you that the risk is currently small. But the reason why the risk is small is due to particular Justices, and I'd prefer the protection come from laws.

            1. If the leaked Dobbs opinion is a good one, even for pro-choice constitutional experts, because the logic behind Roe is poorly supported in their opinion, then it's all about the logic.

              I don't think the risk is small. The whole concept that gay men are pedophiles largely fell out of public use for the last decade. Suddenly, it's roaring back to life as part of the efforts of various GOP governors to build their bona fides for the presidency. I don't believe the recent surge in public homophobia by the GOP party leadership will avoid targeting marriage rights. My bet is the arguments will be related to children and the fact that same-sex marriage isn't the same right as traditional marriage. That seems to neatly sidestep the whole "deeply rooted" construct and once again use LGBT Americans as a sacrifice to their political goals.

              1. Need an edit button. Replace "fact" with "assertion."

        2. The Dobbs draft itself specifically says that marriage and contraception cases are different, and says the limiting principle is they don't involve fetal life.

          One of the weird things about the entire discourse surrounding the draft is that a lot of people are pretending that abortion can't possibly be different than anything else. I'm pro-choice, but even I concede that the fact that there's a living fetus is what makes the issue more difficult! But somehow when Alito puts that in a draft opinion that's not a limiting principle?

          1. I did not find the reasoning of 'the facts of this case are why this logic can't sweep further' to be very comforting, no.

            That logic does sweep further - lots of SDP rights aren't deeply rooted under his paradigm!

            1. Well then let's get rid of substantive due process and go back to privileges and immunities like the ratifiers of the 14th amendment intended, I doubt it will change things much, and it's on more solid legal ground.

              1. It's not a trivial matter to just rewrite that much precedent all a once.

                Plus, now you have some rights that apply to persons and others to citizens.

                And in service of what? Even assuming your premise that SDP is not solid because conservatives hate it (for reasons), what is the benefit of 'solid legal ground?'

                1. "Plus, now you have some rights that apply to persons and others to citizens."

                  Yeah, that's exactly why substantive due process was a bad idea: It took rights intended for citizens, and gave them to warm bodies. You're acting like enforcing amendments as they're actually written is a bad thing.

                  "And in service of what? Even assuming your premise that SDP is not solid because conservatives hate it (for reasons), what is the benefit of 'solid legal ground?'"

                  Because SDP is uncoupled from constitutional text, which is why it didn't result in just automatically incorporating the entire Bill of Rights. It's a blank check to create whatever rights the Court likes, rather than just extend to everybody the rights the Constitution enshrines.

            2. There isn't any "logic" in the Dobbs draft on SDP that wasn't in the majority opinion in Glucksberg, and all of that language goes back to Snyder v. Massachusetts (i.e., way way before Griswold).

              So there's no reason to have a sudden freakout about the "logic", especially since Alito says fetuses are different.

              1. We absolutely disagree about Glucksberg.

                And Snyder may have the 'fundamental' language, but Alito's random century cuttoff is new to me.

              2. Lots of respect for you Dilan as one of the old-timer good faith people here. But I’m afraid you’re wrong about this.

          2. I think the issue is that a lot of the text would suggest the opposite. If your general principle is that Glucksberg is how to think about Constitutional rights, then you don't need the fetus to be involved for Roe to fall. It's almost like he's put forth two reasons for striking down Roe: one is that abortion is special because of the fetus, and the other is that it's not grounded in history. But the former doesn't serve as a limiting principle on the latter as a general concept, even if he says it does in this.

            Having said that, I agree that a lot of the hand-wringing on the left on this point is a bit overblown. Whereas abortion has remained extremely controversial for the past fifty years, society has largely moved on from debates over interracial marriage, birth control and even gay marriage. It's hard to imagine a state trying to move backwards in most of these other areas, although the governor of Mississippi was dumb enough to hold open the possibility of banning contraception.

          3. If "fetal life" is the test, then at least some forms of contraception will fall outside of it as they prevent implantation but not fertilization.

    2. The ruling allowing interracial marriage was perfectly appropriate, as there was a history of it being allowed in at least some states from before the founding, and, more importantly, it was an expected result of the 14th amendment, stillborn due to the Slaugherhouse court's malfeasance. As I've related before, states immediately started repealing those laws, where they weren't being struck down by the lower courts, until the Supreme court put a halt to it with Pace. So Loving just corrected the Court's own mistake.

      Legalizing SSM basically came out of the blue. No historical precedent for it in America, and advocates of the ERA, (Which wasn't ratified anyway.) were adamant that it didn't have that implication. So we got what was supposed to be absurd as a reading of the ERA, without even having the ERA to justify it.

      Abortion occupied an intermediate position: No clearly mandated by originalist principles with an amendment you could point to that was understood to imply it, but at least some historical practice to point to, so it wasn't totally absurd. Wrong, sure, but not absurd.

      1. Is that all it takes? A history of something being allowed in some states since 1780 or so?

        And I once again reiterate that the Founders did not see the Constitution they were writing as locking in the mores of 1790 absent amendment; they expected the usual common law incrementalism to allow the Constitution to slowly modernize alongside society. You don't understand true originalist principles.

        Finally, I'd note how subjective and events-driven your decision re: gay marriage.
        Came out of the blue for *you* doesn't mean anything. And the ERA advocates making a clearly tactically chosen argument like that in support of an effort that failed is also not really evidence of anything.

        1. If early state practice is key to constitutional interpretation…then Dred Scott was correct because that’s a key part of the reasoning.

          1. No it wasn't, because the Dred Scott ruling was that blacks couldn't be citizens, not that they merely weren't in most places. So demonstrating that they actually had been citizens demolished that claim.

            But the claim that interracial marriage is a constitutional right isn't based on practice, really. It's based on the ratification of an amendment which people understood at the time to mandate that.

            That the Court deliberately misconstrued it a few years later doesn't change that.

        2. "they expected the usual common law incrementalism to allow the Constitution to slowly modernize alongside society. You don't understand true originalist principles."

          Good point, tartly made.

          1. That's a bogus argument, because the constitution is plain, it's the supreme law of the land, not common law.

            Common law incrementalism is not, and should not be allowed to erode our freedom of speech, our right to bear arms, our right to a jury of our peers.

            1. the constitution is plain, it's the supreme law of the land, not common law.

              Read Baude's scholarship. This is extremely wrong.

              The Constitution is not plain - it is a framework.
              The British Constitution was understood to function under common law.
              The American Constitution was understood by contemporary American lawyers to function the same way.
              There is no text to countermand that understanding, which the Founders would have been aware of.

              Common law incrementalism is not, and should not be allowed to erode our freedom of speech, our right to bear arms, our right to a jury of our peers.
              It isn't doing that, though.

              1. "The British Constitution was understood to function under common law."

                Gah. Again Gah. How else COULD the British "constitution" function? Textualism does sort of require a text, doesn't it?

      2. I think Justice Black’s opinion in Loving provides an independent ground. And its entrely possible that justications grounded in the Due Process clause will fall but justifications grounded in the Equal Protection Clause will hold.

        Justice O’Conner wrote a concurrence in Lawrence saying that while Bowers v. Harwick correctly decided that sodomy is not a fundamental right, Texas’s sodomy law, violated the Equal Protection Clause because it prohinited same-sex sodomy only.

        It’s possible that that opinion might get more attention.

      3. When it comes to historical and traditional context, do you believe:
        1) That it is an argument in favor of something that has historical precedent?
        2) That it an argument against extending a historical right to other, less privileged groups?
        3) Both?
        4) Neither?

        For example, does the existence of marriage between a man and a woman in the past:
        1) Limit it to just a man and a woman?
        2) Does equal treatment under the law mean that it also extends to any two adults (man/man or woman/woman)?
        3) Does the historical man/woman marriage, combined with equal treatment, extend marriage benefits to any two adults, but no more?
        4) Is marriage a contractual agreement conceptually different than other contractual agreements and, if not, is there any way to justify denying the benefits of marriage to groups of three or more adults?

        I'm asking this as a serious question. I'm sure the paleos will jump in with claims that anything other than traditional marriage will inevitably lead to child brides, beastiality, human/robot unions, and the fall of America, but can serious people post replies and ignore the trolls?

        I mean this as a serious inquiry into the weight and relevance of historical vs. liberty interests. A lot of you are thoughtful and mostly honest, even if I personally don't agree with you (I'm looking at you, Brett). I'm hoping for some substantive outlooks from a variety of perspectives.

        PS- If any phrases I used above are legal phrases with specific meanings, please read them as what they are, descriptive phrases posted by someone with no legal experience or knowledge outside of what I have read here in the last several months.

        1. Crap, this was supposed to be it's own thread. I hate how easy it is to post things in the wrong place.

        2. We need to distinguish between, on the one hand, establishing that something is constitutionally permissible, and, on the other hand, establishing that it is constitutionally forbidden or mandated.

          Past practice is really good for demonstrating that a policy is permissible. It really doesn't get you far in demonstrating that it's forbidden or mandated.

          Taney ruled in Dred Scott that the Constitution did not permit blacks to be citizens. Demonstrating that they had been, (In fact, were in the city where the Constitution was written!) was fatal to that claim.

          Had Taney ruled that the Constitution did not require black citizenship, practice would have been on his side.

          In the case of interracial marriage, past practice would be totally fatal if somebody argued, in Taney's manner, that the Constitution did not permit interracial marriage to be legal. Prior to the 14th amendment, it would be equally fatal to somebody who argued that it didn't permit interracial marriage to be illegal, too! Prior to that amendment, it wasn't a constitutional issue, it was a legislatively determined policy.

          Likewise for abortion: Past practice established that it could be outlawed, but hardly that it had to be; It was within the realm of legislative choices, as there was no applicable constitutional rule.

          The real issue in the case of SSM, since there was basically no past practice favoring it, was whether equal treatment under the law required it to be legal. There wasn't, after all, any basis for saying the Constitution forbade it, the question was whether something in the Constitution took it out of the realm of legitimate legislative choices.

          The chief argument against this was simply that 'gays' already had the equal right to marry: "Marry" included opposite sex as a fundamental part of its definition, EVERY form of marriage that had any significant historical basis incorporated that, and you really had to reach to claim contrary examples.

          Gays clearly did have the right to marry the opposite sex, and a history of doing so. Past practice argued in favor of this position. Did they have the right to 'marry' members of the same sex? From an originalist standpoint, the answer had to be "no", just on the basis that saying otherwise was changing the meaning of the word from it's historical meaning.

          Something the legislature was, of course, perfectly entitled to do, but not the courts.

      4. "Legalizing SSM basically came out of the blue. No historical precedent for it in America, and advocates of the ERA, (Which wasn't ratified anyway.) were adamant that it didn't have that implication. So we got what was supposed to be absurd as a reading of the ERA, without even having the ERA to justify it."

        It sounds like you're talking about Bostock here, not SSM. I'm having a hard time relating the logic in Obergefell to the ERA.

    3. To say that the rulings allowing gay marriage and interracial marriage were justified because they fell within the long tradition supporting "marriage rights", is to give a very wide definition of "marriage rights". Both rulings were big jolts to large parts of the country. But we're told now they were within a "deeply rooted" tradition.

      Like most legal questions, the analysis turns on the level of generality at which you assess it. There is a very very long tradition in favor of marriage; that's not reasonably disputable. There is no tradition in favor of "gay marriage." So is gay marriage a form of marriage, or a new and different institution? (Interracial marriage is clearly the former, not the latter. That it was banned in many places merely restates the question; it doesn't resolve it.)

      But we are also told that allowing abortion is not justified because there is no similar tradition. Suddenly "abortion" becomes a very narrow topic.

      I'm not entirely sure I understand your argument here. Griswold was at least partly justified under the marriage concept. (Now Eisenstadt v. Baird probably can't be justified under the deeply rooted tradition test.) But again, even if Griswold is logically vulnerable, it's not vulnerable in the real world. One would have to hold a referendum in a monastery to get support for outlawing contraception.

      1. Correct. I would add that the big problem with Griswold is not the result, but the slipshod reasoning and writing. Had Warren assigned it to a competent Justice, and not a lazy hack like Bill Douglas, a lot of future unpleasantness could have been avoided.

  5. He is fairly progressive, but also considers himself an originalist. As a consequence, he sometimes breaks with prevailing academic sentiments, and he did so here, arguing there is "nothing radical, illegitimate or improperly political in what Justice Alito has written."

    Interestingly, from this alleged originalist, there is no comment there about Alito's apparent mischaracterization of the "history and tradition," he relied on to get past stare decisis.

    This is not the first time I have had occasion to wonder if Amar is the best scholar to go to when history is a factor in the law.

    1. " to get past stare decisis."

      The Supreme Court doesn't have to "get past" stare decisis because it's not bound by stare decisis. I wonder if you're the best person to be criticizing when legal analysis is a factor at all.

      1. Remember that thought after better Americans enlarge the Supreme Court.

        Or don't. What clingers think won't be much of a consideration at that point.

      2. tkamenick —With the possible exception of Thomas, I doubt there is one justice on the Supreme Court who asserts the Court can bypass stare decisis at will, without analysis. You would probably have to put McConnell on the Court to get anyone willing to disregard norms so freely.

        Various justices have emphasized time and again—while admittedly provoking catcalls from their skeptics—that it takes a process of analysis to justify bypass of stare decisis. Even Senator Collins now asserts publicly that Kavanaugh lied to her about stare and Roe.

        All that does is make it even more imperative for Kavanaugh to participate conspicuously in "analyzing" a decision to discard Roe, and he needs to make it look good. If the justices just announced publicly, "We don't need no stinkin' stare," they would strip too much cover from their political allies to keep the show going. There is a limit to how much, "own the libs," you can show in public. Congress will always have power to enlarge the Court.

        1. With the possible exception of Thomas, I doubt there is one justice on the Supreme Court who asserts the Court can bypass stare decisis at will, without analysis.

          That's some Sacrastr0-level straw manning there.

        2. Enlarging the court is a terrible idea and an even worse threat to use to whip recalcitrant Justices into line.

          There are a lot of reforms that are interesting and defensible to de-politicize the Court, but expanding the court will never be a good idea.

          1. And yet, here it is, already expanded to 9.

    2. Lathrop is again beating (to death) his hobby horse of fake history.

      1. Michael P, let's have some fun. We can do book reports. You have recommended to me a book of history you like. I will find a copy at the library, and read it. I will recommend to you a book of history I like, written by a conservative historian. You can buy a copy inexpensively on Amazon, or go to the library for it. Here it is: ON HISTORY and Other Essays, by Michael Oakeshott.

        After each reads the other's book, we can pick a Thursday open thread, publish our book reports world-wide online, and critique each other's work. Bystanders can decide whether either one of us knows anything about history.

        Thus, we save the effort of hurling accusations back and forth, and impart a bit of dignity to our discussions. Agreed?

  6. The formalism-over-functionalism of 'I am a Democrat who supports abortion rights but opposes Roe' is pretty redic. While matters (laws not men!), going pure law as logical edifice without impact turns law into a game for those of the right demo to ignore practicalities.

    If a privileged guy like Breyer could figure that out, I'd hope others could as well.

    1. Sounds to me like you grant the importance of the rule of law, and then immediately snatch that concession back.

      If the rule of law only prevails in inconsequential cases, then it's meaningless.

      1. Rule of law is about more than hidebound formalism. This has been the case for ages. It's why we have juries, in part.

        I don't see how it's snatching concessions back to note that that blindly following the law without looking at impacts is bad governance.
        If you want a formalistic structure for such analysis, call it purposivistic legislative interpretation.

        1. But judges aren't in the business of governance. They're in the business of judging, applying rules somebody else originated.

          1. No one thinks judges are in the business of governance. I didn't use the word - you're the one that just introduced it.

            Your original thesis wasn't about governance - it was about policy. And implementation is policy; so is interpretation. Judges have been making policy off the break.

            Yes, I know your out of this is to say that you know when a law being interpreted in bad faith, and that's when a judge is off the reservation and governing nor judging. Or something.
            But you need to come up with a more general rubric than your own certainty of how the law was meant to be.

            1. "I don't see how it's snatching concessions back to note that that blindly following the law without looking at impacts is bad governance."

              Do you even read your own posts?

          2. That hasn't been the case in the U.S. since... Article III, which gives SCOTUS "judicial Power" and jurisdiction over all cases in "Law and Equity." And I seem to remember there are some old decisions that speak on this also. Your distinction assumes judging has ever been purely mechanical.

            1. Sure, the Court has jurisdiction over cases in law and equity, and law and equity are two different things. Why treat cases in law as though they were cases in equity?

    2. Constitutional Law professors in particular seem really invested in constitutional law doctrines being part of some kind of logical, almost naturalistic system. Instead of what is actually is: the exercise of political power. I mean all law is political. Laws are made by politicians, which includes judges, since judicial power is political power. But the legal profession has convinced itself that there is something unique about law separate from politics and power because it requires flow charts and some of the oldest doctrines in many areas (which aren't even that old comparatively!) sound like common sense that transcends the politics of the moment.

      Basically, they think that all law should be like contract law which definitely presents itself as a carefully thought out system crafted over centuries to reach perfectly logical and just results for governing human relationships. But it's just not that. And neither is contract law for that matter (although I'd argue it's probably the closest to this ideal).

      1. Americans' ideas about abortion are illogical. Many of those who oppose it are ok with it in cases of rape or incest. Does that make sense? Either the fetus is a person or it isn't. If it is, then it's just as alive whether or not it's growing inside a rape or incest victim, and after it's aborted, it's just as dead. This kind of stuff drives law professors crazy.

        "The life of the law is not logic, but experience."

        1. I agree totally with what you're saying here. It's totally inappropriate to provide rape and incest exceptions, it violates the reasoning behind objecting to abortion in the first place.

          Few people are capable of reasoning clearly and consistently on any side of this, or most subjects, regrettably.

          1. And how does that square with your monstrous (and absolutely heretical for your chosen religion) belief you can kill for property?

            You’re pretending you’re consistent here, but you’re the least consistent of all of them.

            1. LTG....Could you define 'kill for property'?

              Are you talking about shooting an intruder dead in your home?

              1. Well it depends. Are they threatening your life? If so…that’s not defense of property, that’s classic self-defense. Brett thinks it’s morally acceptable to kill when there is no threat to life. Just property: ie he thinks he could shoot someone in the back if they pick pocketed him. He’s very open about it and had this insane idea that stuff is imbued with life because of the time it took a human to gain it. Which is silly on many levels not the least of which is the fact that would be an extremely heretical belief in the religion he decided to convert to.

                1. "Brett thinks it’s morally acceptable to kill when there is no threat to life."

                  No, you're misunderstanding me.

                  Look, I worked long and hard to buy the food in my pantry, to pay for the roof my family lives under. Suppose somebody breaks into my home and robs me. I might not be able to feed my family, we might end up out on the street if my finances were harmed badly enough. Certainly we can't eat groceries somebody has stolen, and we have to eat to live.

                  So you can't completely disentangle property and life; We are not disembodied spirits who can live without property, property is essential to life, not just lifestyle.

                  And, yes, property I've already bought at the expense of the hours and days of my life is largely fungible with my life; If I'm to replace it, I must, after all, lose even more hours and days from my finite stock of lifespan to do so.

                  But, if somebody robbed me of $100, would I kill them over it? Would I consider myself justified in killing them over it? Hell, no. For one thing, the loss has already happened, and killing them won't undo it. (As a practical matter, killing them would aggravate the loss!) For another, it would be totally disproportionate.

                  Now, if they were trying to set my home on fire? Then it might be reasonable as a matter of proportion, if killing them were the only way to stop them.

                  Moreover, even if it were just to do so, it wouldn't be merciful. Notice that justice and mercy are separate concepts, and mercy is a departure from justice; If justice didn't permit killing a thief, refraining couldn't be merciful, because mercy is going above and beyond what justice demands. (Justice is a harsh mistress, but the wronged are entitled to ignore her commands, unlike those who do the wrong.)

                  I once had a car stolen from me. Technically, they bought it, and failed to finish paying for it. I could have gone to the law and gotten the car back, but I looked at their situation, wrote it off as charity, and told them as much. So the idea that I'm going to blow away a pickpocket is pretty silly.

                  But, to be clear, if the question is whether $100 is worth killing somebody over, shouldn't that be a question we want thieves asking, rather than their victims?

                  1. But, to be clear, if the question is whether $100 is worth killing somebody over, shouldn't that be a question we want thieves asking, rather than their victims?

                    No because that removes responsibility from the killer. That's the logic of a sociopathic abuser. It's wife-beater logic. Now I'm concerned about your family tbh.

                    1. Instead you'd remove the responsibility from the criminal. I don't want people to live in fear of criminals, I want the criminals to be the ones living in fear, and hopefully deciding to pursue a less criminal, and thus safer, career.

          2. He's got you there, Brett. If property is money is time is life, and may be protected as such, abortion is justified.

            1. He'd have me if being conceived was a crime.

              1. Why is that logic required? Does force in defense of property require an underlying felony? Because that seems some pretty narrowly tailored natural law logic right there.

                1. Why is that logic required? Does force in defense of property require an underlying felony?

                  It requires an intentional act on the part of the one taking the property. Really, the argument is as stupid as Krychek's "The fetus is liable for the tort of trespass against the person" one.

                  The capacity of some to make truly inane, simple-minded comments while convincing themselves that they're brilliant drop-the-microphone moments never ceases to amaze.

                2. It requires an intentional act on the part of the one taking the property

                  Under what logic? If property is equivalent to life, necessity does not require any wrongdoing to be triggered.

                  You really need to stick to dealing with the comment, and quit attacking the commenter needlessly.

                  1. Under what logic? If property is equivalent to life, necessity does not require any wrongdoing to be triggered.

                    That is, of course, a simple-minded straw man argument on your part.

                    You really need to stick to dealing with the comment, and quit attacking the commenter needlessly.

                    How about you stop being such a pathologically lying sack of shit making stupid comments before presuming to be in a position to hand out advice regarding what you think others need to do?

              2. Still a heresy. There is no where in the Catechism that suggests humans can imbue items with life as you believe and in fact such a view would be considered disordered and contrary to God’s design.

                1. Good thing I don't believe that.

                  1. "And, yes, property I've already bought at the expense of the hours and days of my life is largely fungible with my life."

                    You literally wrote this. Absolute nonsense and a heresy to boot. Maybe you should consider leaving the Church because you're really bad at the whole Catholicism thing.

                    1. "Largely fungible" and "imbued with life" are hardly the same thing.

                    2. Okay heretic

        2. “Does that make sense?”

          Actually it does because most people, especially pro life conservatives, typically believe that you can defend your body against dangerous physical harm even if it means taking a life. Which is what a forced pregnancy that wasn’t chosen would be considering how dangerous pregnancy/birth is.

          Hell most of those people think that you can take a life in defense of property or do military strikes with civilian casualties (including pregnant people) so it makes sense that you could carve out an exception for rape/incest no matter how you view the “personhood” of the embryo/fetus.

        3. "Many of those who oppose it are ok with it in cases of rape or incest."

          Its tactical only.

          The pro abortion media won't be able to demagogue on the issue quite so much.

          1. Is literally everything a disingenuous tactic for you? Has it ever occurred to you that someone genuinely does not want a victim, particularly a minor, to go through something as dangerous and traumatic as birthing the child of their rapist, who may even be a relative? That there might be a strong moral reasons against making someone go through all the lifelong physical and psychological consequences in those circumstances even if you believe that abortion is generally wrong? That maybe, just maybe, using government power to make an 11 year old give birth to her uncle's kid is just not a good thing to do?

            1. Alabama, Arizona, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Tennessee and Texas. All those states have bans or trigger-laws that don't contain exceptions for rape or incest (and in some cases, don't have exceptions for the mother's health either).

              Of 86 pending new abortion restrictions this year, only a handful include such exceptions.

              Pro-life activists have publicly said that those exceptions are just to appease centrists, and they don't really want them.

              So I don't think it's unfair to look at what pro-life legislators and activists say and do. And what they say is they don't want those exceptions, and what they do is not include those exceptions when they don't have to.

              So to answer your question, "maybe [...] using government power to make an 11 year old give birth to her uncle's kid is just not a good thing to do" is not a belief that that is as popular in the pro-life crowd as you think it is.

              1. I mean I agree that a lot of them don’t think that. It’s just weird to think every proponent of exceptions is engaged in some kind of tactical feint instead of actually weighing the morality of the exceptions.

                1. Obama voted against protecting a child outside the womb after an abortionist fails in his deadly mission -- you think he goes on bragging about it?

                  Democrats have blocked banning abortions when the child is aborted because of its race or sex. They are open to killing even in the birth canal yet they always talk about a "clump of cells."

                  This is outright deception and hypocrisy!

                  1. Do you actually believe the pro-choice strawman you build or are you just such a zealot you can't recognize that there are more than the "all or nothing" positions?

                    There are many shades of belief between the two extremes and they are populated by most Americans. They aren't head fakes or strategic plots. They are honestly held beliefs by people who are trying to figure out where abortion fits into their moral beliefs. Honest, real, logical, and personal moral beliefs.

                    1. Nelson, what I said was the result of actual votes by the majority of Democrats in several legislatures. I am not exaggerating or misreporting -- it is the truth.

        4. I'm not sure I agree, captcrisis.

          I think one can hold that abortion is an act with negative moral implication, but lesser than murder, and thus allows for some exceptions as you balance the moral equities.

          The Pro Life rhetoric these days doesn't say that, and there are always people like Brett who go full Manichean in their analysis, but I do think that despite that there is a middle being hidden by the current politics.

        5. Some of those who are for also also are Ok with abortion of full term babies up to the moment of birth.

          There is middle ground where the vast majority lie.

          1. Anyone advocate for that lately?

            1. PA law since 1982 is 24 weeks. I really doubt if Roe falls that will change.

              1. So re: 'abortion of full term babies up to the moment of birth' you were making shit up.

                Again.

            2. You really need to keep up Sarcastro, Schumer's Roe codification bill last week would have allowed full term abortions, that's one reason pro-choice republicans like Collins and Murkowski voted against it.

              To be sure it legalizes abortion only up to viability, but that means nothing because it leaves viability up to the judgement of the "healthcare provider", who doesn't even have to be a doctor, and it also has the "health" exception, which of course means the mother can just say, the thought of having the baby makes me anxious or depressed without any evidence of causing significant health effects.

              So while you can argue about how significant these carveouts may prove to be, you can't argue it doesn't allow at least some full term abortions depending on how accomodating the health care provider is, and I think everyone will concede they can be pretty accomodating.

              1. SEC. 4. PERMITTED SERVICES.
                (a) General Rule.—A health care provider has a statutory right under this Act to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services, without any of the following limitations or requirements:
                ...."(8) A prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure."

                Don't you look stupid now.

                1. You didn't even read what I wrote did you?

                  "To be sure it legalizes abortion only up to viability, but that means nothing because it leaves viability up to the judgement of the "healthcare provider", who doesn't even have to be a doctor"

                  Don't you look stupider.

                  We all know there are ways to write limits that are meaningless, or to write real limits in the law. That limit was fake, which is why it got voted down.

              2. I don't know what a "full term" abortion is, since it isn't described in any medical text I can find online. Abortions after viability, including those into the last month of pregnancy, should still be allowed under limited circumstances. The fact that the proposed law allowed them shouldn't be controversial to anyone that is pro-choice. I realize some pro-lifers believe the mother should risk death even when the baby insider her will itself die soon after birth or may even already be dead while in the womb. In these cases, regardless of the week of pregnancy, there is no reason to force a birth and potentially kill a mother. Someone who claims to be pro-life but doesn't value the life of the mother or potential lives of her future children or even the lives of existing children, isn't really pro-life.

                1. I think almost everyone can agree on abortion at any stage to save the life of the mother.

                  But why didn't they write the legislation that way? If there are serious health questions involved then do you think it should be left up to a single physician's assistant to make the call and perform the procedure? Only if the health issue is a sham to allow for the abortion.

                2. Seriously, I am at somewhat of a loss to imagine a circumstance under which a pregnancy has proceeded to the point of viability, where an abortion, specifically, rather than live delivery, would be necessary to to save the mother's life.

                  If the baby is dead in the womb, (Fairly easy to confirm.) it's not even an "abortion", you realize that? Subtler problems that will inevitably lead to death after delivery can exist, but that very subtlety means they're hard to diagnose before hand.

      2. "Constitutional Law professors in particular seem really invested in constitutional law doctrines being part of some kind of logical, almost naturalistic system. Instead of what is actually is: the exercise of political power."

        It's pretty simple. Under democratic theory, any position in the government that is policy making, rather than implementing, is supposed to be elected. But Constitutional law professors really, really dislike the idea of an elected judiciary, such as you see in some states.

        So they're obligated to treat judges as not making policy. This only works if their decisions are logically driven by doctrine, rather than being discretionary.

        Once judges are conceded to have discretionary policy making power, the case for not electing them collapses.

        1. Under democratic theory, any position in the government that is policy making, rather than implementing, is supposed to be elected.

          In the modern era, we realize that implementation *is* policy, in every way that matters. Your arbitrary line-drawing between policymaking and policy implementation itself creates a whole crapload of policy implications.

          And I think you made up the thing about not liking elected judges being a general thing among Constitutional academia.

          And the idea of judges being bound by doctrine, with no room for discretion, is not how judges have *ever* been.

          1. "In the modern era, we realize that implementation *is* policy, in every way that matters."

            In the 'modern era', we've decided that being an accountant is wealth, because you're able to embezzle. The contrary view, after all, is based on arbitrary line drawing between adding numbers and deciding what they should be.

            1. Yes, judges ruling as you have decided is wrong is the same as embezzlement.

              I can't really engage with your comment because your analogy is begging the question too hard for any reasoning to follow.

              1. It's no more begging the question than the contrary claim that implementation is inherently policy. You think judges SHOULD be leveraging their position in the system to make policy choices, I think they shouldn't.

    3. So Ruth Ginsberg was pretty redic in her view of Roe as well:

      "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade ."

      RBG NYU law review 1992.

      She wrote that 20 years after Roe, and she was still calling it unstable. Why? Because it was a terrible decision regardless of how you feel about a woman's right to abortion.

      But it's kind of redic for you criticize people like Amir who's career is the law for putting the law first, as he should. People listen to him because he differentiates between the law and opinion.

      If we just want opinion with no basis in the law we can always come here and read your comments.

      1. Do you for a moment think she thought abortion should no longer be protected? No? Then where is the misalignment between desired end-state and real-world implications?

        Lets be clear - no one against Roe would agree with the decision if it had been penned under the greatest doctrinal specificity there is. This is eyewash.

  7. At least he displays some honesty and that is refreshing

  8. "Professor Amar also disputes some of the fear-mongering about what overturning Roe would mean for other constitutional rights."

    Sorry dude, I can't hear you over the sound of Missouri legislators trying to ban IUDs. It sounds like "we're coming for Griswold" and you're just noise.

    1. To put it another way, when a major political party says "these are the rights we're coming after next", it's not "fear-mongering" to listen.

      1. And as to IUDs specifically, it was not an attempt to ban them generally, just an attempt to prevent Medicaid from paying for them.

        https://rewirenewsgroup.com/article/2021/06/28/missouri-lawmakers-pretended-iuds-cause-abortion-they-lost/

        And the attempt was defeated in the Missouri state legislature.

        1. What do you think the underlying policy need behind this push?

          1. If I had to guess, probably a fascist plot to enslave women - especially women of color and Palestinians - and turn them into concubines for Republicans. And make them wear those ridiculous red dresses.

      1. The question is why Missouri *isn't* banning IVF, as the article points out. I thought the fertilized egg is a life?

        1. Have they tried to ban conception? I hope not, the long term consequences might not be so great.

          1. What is the limiting factor here? IVF kills a lot of fertilized ova.

            1. I'm pretty sure that IVF creates fertilized ova, rather than killing them.

              1. Fun fact...it does both! About a dozen at a time. Sarcastr0's point is the right one; there is no principled limiting factor.

                1. Fun fact: Fertilizing ova creates fertilized ova. People might subsequently destroy them, of course, but they're not destroyed by the process of fertilizing them.

  9. It's cynical for Professor Amar to say Justice Ginsburg was "sharply critical" of the Roe decision. She felt neither the 14th's Due Process Clause nor the 9th amendment is the best footing for abortion rights. She believed abortion rights are best framed as a matter of Equal Protection.....

    ...which is why Alito's gesture to equal protection should be no comfort when it comes to Ogberfell or other social rights not rooted in the 1800s. The 9th amendement would be more than adequate to protect abortion rights of course (and how conservative an approach!) but the Equal Protection clause plainly applies where bodily autonomy is recognized for some citizens (with XY) and not others (with XX).

    For those wondering, there is no dispute a fetus lacks established rights under the Constitution; the majority in Roe and Justice Alito agree on that. Thus there is no originalist tool that can turn a woman's right to bodily autonomy into a competition between two people/lives. The only competition is between the rights of women and the power of the state. In that competition, bodily autonomy has significant heft under the 14th and 9th amendments... and for more exotic flavor, consider the state's even more limited powers if we denominate fetuses as non-persons (originalist) or even property. That would bring analysis under the 4th amendment "secure" and "seizure" provisions (!!), the 5th amendment Takings Clause, and arguably the 13th's ban on involuntary servitude.

    If Alito's "let the legislatures decide" approach seems attractive, consider the effect of a law banning men from getting vasectomies before the age of 35 (because babies good!) and then requiring them at age 36 to reduce birth defects. What constitutional amendment will you cite to the Alito Court then? Whatever it is, it will need to be applied equally to women.

    1. For those wondering, there is no dispute a fetus lacks established rights under the Constitution; the majority in Roe and Justice Alito agree on that.

      Wait...you're saying that an opinion being held by 8 justices, 7 of whom aren't even alive any more, means that there is no dispute about it?

      consider the effect of a law banning men from getting vasectomies before the age of 35 (because babies good!)

      The stupidity of that sorry-assed attempt at an analogy is self-evident.

      1. Okay, you can dispute it if you want. Justice Alito doesn't even make that attempt, however.

        I didn't say it was an analogy. I was making a rhetorical challenge to identify a Constitutional protection that survives Dodds and also prevents such a law. Perhaps you have one in mind?

        1. Okay, you can dispute it if you want.

          I...and many millions of others...do. Ergo, it is very much in dispute, your claim to the contrary notwithstanding.

          Justice Alito doesn't even make that attempt, however.

          I'm not sure why you think means that the conclusion is "not in dispute".

          1. "I...and many millions of others...do. Ergo, it is very much in dispute"

            I think you are conflating your personal belief with the legal establishment of personhood. Reallynotbob is discussing the latter, you are trying to make the former equivalent.

            In a discussion of the law, my guess is legal precedents and rulings will have more weight than the opinion of a random citizen (or even a small group of them). I'm not a lawyer, but I think that's how the law is supposed to work.

            1. I think you are conflating your personal belief with the legal establishment of personhood.

              I'm not conflating anything. There is very much a debate...both legal and philosophical...about what "personhood" is, and when it begins.

              In a discussion of the law, my guess is legal precedents and rulings will have more weight than the opinion of a random citizen (or even a small group of them).

              What you think "the opinion of a random citizen" has to do with anything I've said is not apparent. I said "I...and millions of others", which includes court officials, legal scholars, etc. Furthermore, the claim that Alito "agreed" in his draft opinion that "a fetus lacks established rights under the Constitution" is quite false. He simply said that the court's analysis wasn't predicated on the existence of such rights.

              1. Alito, in the draft, expressly refuses to entertain what he considers a policy question about the legal personhood of a fetus. Which is to say that Alito concedes fetuses are not persons as a Constitutional matter. He thinks legislatures may view them that way; but that's a very different proposition with very different jurisprudential ramifications.

                1. Alito, in the draft, expressly refuses to entertain what he considers a policy question about the legal personhood of a fetus. Which is to say that Alito concedes fetuses are not persons as a Constitutional matter.

                  How about you provide the exact quote that you're paraphrasing here rather than expecting us to just accept your interpretation of it.

                  1. Nothing but crickets...as I expected.

        2. I didn't say it was an analogy. I was making a rhetorical challenge to identify a Constitutional protection that survives Dodds and also prevents such a law.

          Which would make it....an analogy, since they two cases would need to be analogous with regard to the hypothetical Constitutional protection in order for it to apply to both cases. Here's a hint: One case involves termination of a human life (by biological definition). The other does not. See if you can figure out why that makes a difference.

          1. That's not the point.
            Answer the question: what Constitutional safeguard prevents a hypothetical Universal Vasectomy Act?

            1. That's not the point.

              It's absolutely the point.

              Answer the question

              I did.

    2. Equal protection for whom?

    3. I agree with Alito the Equal Protection Clause argument here is very weak. A husband’s right to initiate a pregnancy was an accepted common-law right well into the 20th century. It’s far more deeply rooted in history and tradition than abortion. Equal protection taken seriously would tend to suggest that if a woman has a constitutional right to terminate a pregnancy without anyone else’s consent being required, a man must have a constitutional right to initiate one. Why should woman be the only sex to havweany say over whether they get to have children? The idea of a constitutional right possessed by one sex and one sex only is just as much a violation of equal protection as the idea of a constitutional right possessed solely by one race and one race only.

      1. Did you just argue that the "equal protection" equivalent for a woman's right to control her own body (say, to save her own life) is to codify a man's unfettered right to put his penis into her?

        Holy. Fucking. Shit.

        1. "Why should woman be the only sex to havweany [sic] say over whether they get to have children?"

          Marital rape is far more deeply rooted into our traditions than a woman's right to vote, acquire personal property, or say "no" to her husband.

          So naturally, to the give men more of a "say" in whether a woman gives birth, we'll sic the government on her to force the issue.

  10. Those statistics are misleading. The Roberts Court has preferred to avoid explicitly overturning precedent — but has often narrowed the scope of precedents to similar effect, on abortion and voting rights and executive power. And if the Roberts Court has overturned fewer Congressional statutes, that may reflect Congress passing fewer laws per year than in the Rehnquist or previous eras, so a statistic with a denominator would be more helpful.

    1. Gorsuch and Sotomayor agreed with me on this today — both say that the majority opinion in Egbert v Boule amounts to overturning Bivens and would be more honest if it did so. (See Gorsuch’s comment that “I would only take the next step and acknowledge explicitly what the Court leaves barely implicit”; see Sotomayor’s comment that “the measures the Court takes to ensure Boule’s claim is dismissed are inconsistent with governing precedent.”) So the Roberts court is effectively turning over precedent, but in ways that this statistics won’t capture.

  11. Roe places limits on states on how much abortion can be restricted. But places no limits on how long in a pregnancy abortion can be allowed.

    It's one sided on top of just being plucked out of thin air. A pro-life court could have reversed it and said no abortions allowed after a certain term based on the rights of the baby.

    Which further amplifies its not the courts job to determine this. Return it to the states

    1. No Court, including Alito's draft Dobbs decision, has ever held the baby in utero has rights. Only that the state might assert an interest in protecting unborn fetuses that competes with with the mother's right to bodily autonomy.

      1. I should amend that. I don't know "no court" for sure. I know Roe, Casey, and draft Dobbs do not.

    2. "Return it to the states"

      No, keep it with the individual. Taking decisions away from individuals and giving it to the government is a bad thing.

  12. While there's some valid points about the damage to other precedents, provided one ignores the line of argument that the 14th Amendment recognizes no privacy right at all, claiming it doesn't impact Griswold strikes me as dishonest.

    Alito's argument abortion is distinguished from Griswold by impacting a life is facially ridiculous and shows he's deeply ignorant about how birth control works. In arguing that pre-viability abortions impact a life, it's necessarily required that pre-viability fetuses constitute a life, and that would begin at conception. Many birth control methods result in the destruction of a fertilized egg-- a life, as Alito claims.

    Birth control isn't something that existed in a meaningful way prior to the 20th century, so there can't be a historical basis for permitting it. The historical basis would then fall to the right of the government to arbitrarily restrict which drugs medical practitioners can give you for whatever reasons. (If one disputes the grounds are arbitrary, you can fall back on Alito's argument it's related to a life). While I'd love to see Alito embrace the unconstitutionality of the War on Drugs, he does not recognize a general right to take any drug a doctor recommends for any reason. Nor does the rest of the court.

    If Amar can offer other grounds to defend Griswold, so be it. But Alito's arguments in the Dobbs leak clearly implicate it as bad law.

  13. Sigh. Does anyone else remember the good old days when this blog was hosted by the Washington Post? The comments were a lot less bigoted and the commentors were a lot smarter and more thoughtful.

    1. Unfortunately, the left has gotten very narrow- and simple-minded since then.

    2. Well the really good old days was when the blog was standalone at Volokh.com, and probably the best days if you don't want comments you disagree with, is before they allowed comments during the first few years.

    3. The comment section was garbage at WaPo too, just with a slightly different stench. The only time it was somewhat decent was back when this was hosted on its own website owned by EV, and only people specifically going out of their way to follow a niche legal blog participated. In my experience, the larger a community's reach becomes, the more the quality of conversation diminishes.

    4. Sigh. Does anyone else remember the good old days when this blog was hosted by the Washington Post? The comments were a lot less bigoted and the commentors were a lot smarter and more thoughtful.

      I remember those days...and no, they weren't a lot smarter and more thoughtful, anymore than the general WaPo comments sections are today.

    5. I remember why the blog stopped being hosted by the WaPo: They started plugging the holes in their paywall that the blob being hosted there was predicated on, and getting really intrusive with the comment censorship.

      I much prefer the present setup. Just as many thoughtful comments, but they're not restricted to being left-wing, as would be the case at WaPo by now. I'll gladly read past the non-thoughtful comments, to avoid that censorship.

  14. I think Chief Justice Roberts has a point that it may be possible to resolve Dobbs by scaling Roe back without completely overturning it, and that the Court has a duty to decide the law the case before it in a manner that makes the least change to the law. This would require the Court to postpone the question of whether Roe should be completely overturned to another day. That day, however, will likely come soon.

    That said, I think the Alito opinion is basically correct on the merits. Abortion is neither implicit in the concept of ordered liberty nor deeply rooted in this nation’s history and tradition. Roe was in its essence a legislative decision, not a legal one. It was a highly controversial legislative decision, and has remained so. The constitution allocates legislative decisions to legislatures. Moreover, the courts’arrogation of legislative authority to itself has damaged the fabric of our polity. Matters that could have been handled through local legislative compromises were instead forced into a national winner-take-all zero sum game.

    For a very large proportion of our citizens, the ONLY criterion for who to vote for in Presidential elections is who the candidate plans to appoint as Supreme Court justices. The business of Congress has become practically irrlevant. Compromise has become completely impossible. The Court’s repeated constitutionalisation of its members prefered policy positions, its fraaming of its legislative agenda in comstitutional absolutes, has a great deal to do with the rise of absolutist rhetoric in politics gwnerally and inability of the political branches to compromise on anything. In a non-legislative Congress’ whose main function is to approve the right Supreme Court Justices, compromise has no place.

    It’s a situation on track to destroy not just the Presidency, not just Congress, but the Supreme Court, and the whole Republic with it.

    The Court needs to step down from attempting to make policy calls on highly controversial matters that the constitution says absolutely nothing about, and return to deciding the law and letting legislatures do the legislating.

    1. That last sentence would be more believable if they had any interest in ensuring that legislatures actually are democratically elected. Dobbs should be viewed in conjunction with Rucho. By letting legislatures gerrymander themselves into permanent majorities such that voting actually has no effect on the composition of the legislature (as in Wisconsin) the plan to leave legislating to the states rings disingenuous. And Baker and Reynolds aren’t exactly favorites in conservative circles. So I wouldn’t be surprised when they start dismantling that so they can entrench minority rule in states even further if they want.

      See https://www.nationalreview.com/bench-memos/day-liberal-judicial-activism-june-15-ed-whelan-4/amp/

    2. ReaderY, despite your admonitory framing, your advocacy remains that the Court make a jolting policy call. An alternative would be to leave ~50 years of law alone. Of course, that would not buy peace in the abortion wars, but neither will the new policy-centric-shocker Alito has in store. So I do not understand your basis of choice. You write:

      The Court’s repeated constitutionalisation of its members preferred policy positions, its framing of its legislative agenda in constitutional absolutes, has a great deal to do with the rise of absolutist rhetoric in politics generally and inability of the political branches to compromise on anything. In a non-legislative Congress’ whose main function is to approve the right Supreme Court Justices, compromise has no place.

      Do you really suppose anything which follows overturn of Roe will in any way diminish those tendencies you rightly criticize?

      Somehow, your take seems to position the post-Roe era as aberration, and presumes the pre-Roe era, going back to the early 19th century, has always remained the norm. I am unable to discern why that makes sense. When Roe overturned that previous set of social norms, it came as a long-contested political change, responsive to efforts stretching back to times far earlier than the passage of Roe.

      Also, prior to the early 19th century, abortion law appears to have featured a less intrusive legal regime, which was in operation for approximately 200 years. What do you find in U.S. history to make you suppose, for instance, the interval 1825–1950—which was likely the most-pietistic period experienced between 1607 and today—ought to qualify still as a national norm, a half-century after it was fought over and rejected?

      My take is that abortion is an intractable subject, destined to be fought over nationwide. It is not a subject apart, but part and parcel of a multi-issue culture war—one which typically pits minority views against an actual majority which is systematically under-represented politically.

      The way to minimize disruption cannot be to invoke politics as a virtue, and then insist that political control switch from an actual majority to an awkwardly-advantaged structural minority. How frequently do you suppose abortion policy ought to be revolutionized, then re-revolutionized, to effect a peaceful resolve to the culture wars?

      1. The justices swore an oath to uphold the Constitution of the United States, not the policy preferences of the least scrupulous justices preceding them.

        1. NNP — That would be the Constitution of the United States written at approximately the least pietistic moment in U.S. history. Written, that is, during the interval I mentioned, "when abortion law appears to have featured a less intrusive legal regime."

          In the absence of any language whatever in the Constitution touching explicitly on the subject of abortion, what makes you suppose constitutional inference ought to be based on social norms which would not achieve influence until 30 years later? How do you know the social politics of the Second Great Awakening were not, by the lights of the Constitution, the least scrupulous policy preferences?

    3. I agree, Roe is the main reason our current political environment is so toxic. It set up the proposition that our policy disagreements could be settled by a winner take all control of the courts rather than by legislation requiring compromise.

      Once the primary aims of the political parties was dominance of the court system, and on the other hand frustrating the other parties dominance it made Congress little more than a confirmation body, impotent to legislate and content to let the executive rule by directive and regulation, with the courts providing the only check and balance.

      1. You make a good point. But I would quibble to say it wasn't the Roe decision itself that did this. It was the weaponization of Roe by politicians, in significant part during the Contract With America years. As a matter of public policy, total abortion bans have never been the majority of Americans' policy preference, and Roe itself has enjoyed majority public support throughout.

        That's consistent, by the way, with the democratic/capitalistic tendency to prefer stability to uncertainty.

        1. The "It's not a war until the other side fights back, so WE didn't start the war!" mentality.

          1. Both the decision and outcome were popular at the time and remain popular. The dissatisfied minority chose to toxify the discussion by demonizing the majority's view. I understand the tenacity of deeply held religious beliefs. This, however, is a secular society in which religion does not always get its way.

  15. What do you find in U.S. history to make you suppose, for instance, the interval 1825–1950—which was likely the most-pietistic period experienced between 1607 and today—ought to qualify still as a national norm, a half-century after it was fought over and rejected?

    Well, it constitutes over half of the time that we've had a Constitution. But you don't want that as a national norm? Fine. We don't need to *have* a national norm. That's the whole point.

    When Roe overturned that previous set of social norms, it came as a long-contested political change

    Long-contested political changes should not come in the form of the Supreme Court declaring that they're just going to tell everyone what to do and nobody can ever change it barring a constitutional amendment.

    1. But they should say that individuals are free to make their own decisions absent a compelling government interest in stripping that decision from the individual.

      Giving power over an individual's decision-making should be viewed as skeptically as possible. At its root, anti-abortionists favor government force over personal moral decision-making.

      They are betting that it won't end up being used for things they disapprove of (or at least things they disapprove of as much as abortion).

      I think that's a bad bet. This will end up being used in a much wider way than anti-abortionists claim, and not only for things that cultural conservatives cheer.

      Anything empowering governmental force against controversial moral beliefs and weakening protections for Americans will be embraced and weaponozed by the culture warriors on both fringes.

      Republican and cultural conservative zealots on this site keep claiming that Democrats are the authoritarians and Republicans are the ones in favor of individual liberty. We're about to have a practical test of that proposition. I doubt it will end well for them.

      1. At its root, anti-abortionists favor government force over personal moral decision-making.

        Yes, that's why they favor abolishing all laws regarding assault, murder, theft, etc, etc....because they believe that it's up to the individual to determine whether or not those things are moral, and despise the state placing prohibitions on them.

        1. Do you actually think such ridiculous arguments are compelling? Or are you really trying to argue the only two choices are complete abolition of abortion or murderous anarchy?

          But you are anti-abortion, so you are inherently dishonest on the subject.

          1. Do you actually think such ridiculous arguments are compelling?

            No, I don't think your stupid "anti-abortionists favor government force over personal moral decision-making" claim was compelling at all, and I thought I made that clear. The following idiocy...

            But you are anti-abortion, so you are inherently dishonest on the subject.

            ...was even less so. At this point there is zero reason to take you seriously.

      2. Republican and cultural conservative zealots on this site keep claiming that Democrats are the authoritarians and Republicans are the ones in favor of individual liberty. We're about to have a practical test of that proposition. I doubt it will end well for them.

        The "zealots" you refer to are calling for state legislatures to determine whether or not the termination of a human life should be legal. Democrats favor prohibitions of speech they don't like.

        1. Yes, the zealots are choosing government coercion over individual decision-making.

          Another way to say it is that the zealots prefer forcing a minority moral position on those who didn't choose it for themselves.

          Anti-abortionists are universally authoritarian on this subject. They have to be. Less than 1 in 6 Americans believe abortion should be completely illegal. After 50 years of effort, they haven't mustered a convincing enough argument to gain any additional support.

          Pro-lifers are more resonable, but they are probably more pleased that Roe is gone than they are worried about the government force required to reduce abortion. Depending on how far the zealots are willing to go, that may change. Pro-lifers are more reasonable than anti-abortionists and sometimes uncomfortable with the lengths the minority fringe of their movement will go to.

          Leaving people to make their own decisions is what the last 50 years have been. Without government force being used, that is what it would continue to be.

          I'm not sure how your partisan shot about free speech is relevant to abortion, since there has been a ridiculous amount of free (and intentionally untrue) speech deployed by anti-abortionists. But whether they tell the truth or lie through their teeth, they have failed to convince people to join their cause. Hence the need for government force.

        2. The "zealots" are currently writing bills that ban removing ectopic pregnancies which are: not alive, not potentially alive, impossible to birth, and likely to kill or seriously injure the mother.

          1. The "zealots" are currently writing bills that ban removing ectopic pregnancies which are: not alive, not potentially alive, impossible to birth, and likely to kill or seriously injure the mother.

            While I oppose any such legislation, your fundamental ignorance of basic biology precludes from being taken even remotely seriously on this issue.

      3. If abortion rights are so great, why do we need euphemisms?

        "personal moral decision-making"

        "reproductive health care"

        "medical treatment"

        "domestic institutions" - whoops, that's a whole other set of euphemisms.

        1. Personal moral decision-making is a faith-neutral way of saying "religion". Even atheists have moral codes that are equivelent to (and as valid as) Catholics or Scientologists or Universalists or Evangelicals or Mormons or ... you get the idea. But they are all the same.

          Reproductive health care involves all aspects of the mental and physical well-being of the patient. It is elements that a person uses to make decisions about pregnancy and the consequences of terminating or carrying to term a pregnancy.

          Medical treatment is just that. Treatment by medical professionals. Everything from your annual checkup to end-of-life decisions.

          You want everyone to view these things as distractions or irrelevant details because you think that the only thing that matters is whether a person has an abortion (which is wrong no matter what) or chooses to continue the pregnancy (the only right choice).

          You can't accept that it might be complicated or nuanced or that there might be another, equally valid, belief. So you cast anyone who doesn't reduce the issue to black or white as dissembling or dishonest. But it is you and your absurd reductionism that is dishonest.

          Look at how you started: "If abortion rights are so great ...". The difference between "great" and "necessary" is vast. Pretending that pro-choice advocates think that abortion is a great thing is pure dishonesty.

          Having a choice is great. Having rights is great. Having liberty is great. Having bodily autonomy is great.

          Having an abortion is not great. But sometimes it is necessary. And there is nothing wrong with that. Tragic, perhaps, that it is necessary. But not wrong.

          1. I'm always impressed at how eager people are to demonstrate that they don't really believe in human diversity.

            Of course there are people who celebrate abortion, that it's a great thing, not merely an occasionally regrettable necessity.

  16. When it comes to historical and traditional context, do you believe:
    1) That it is an argument in favor of something that has historical precedent?
    2) That it an argument against extending a historical right to other, less privileged groups?
    3) Both?
    4) Neither?

    For example, does the existence of marriage between a man and a woman in the past:
    1) Limit it to just a man and a woman?
    2) Does equal treatment under the law mean that it also extends to any two adults (man/man or woman/woman)?
    3) Does the historical man/woman marriage, combined with equal treatment, extend marriage benefits to any two adults, but no more?
    4) Is marriage a contractual agreement conceptually different than other contractual agreements and, if not, is there any way to justify denying the benefits of marriage to groups of three or more adults?

    I'm asking this as a serious question. I'm sure the paleos will jump in with claims that anything other than traditional marriage will inevitably lead to child brides, beastiality, human/robot unions, and the fall of America, but can serious people post replies and ignore the trolls?

    I mean this as a serious inquiry into the weight and relevance of historical vs. liberty interests. A lot of you are thoughtful and mostly honest, even if I personally don't agree with you (I'm looking at you, Brett). I'm hoping for some substantive outlooks from a variety of perspectives.

    PS- If any phrases I used above are legal phrases with specific meanings, please read them as what they are, descriptive phrases posted by someone with no legal experience or knowledge outside of what I have read here in the last several months.

  17. "personally support abortion rights"

    So, he votes against abortion rights because the doesn't want to embody his personal beliefs in public policy?

    That's the usual definition of "personally support."

    1. The desire to see your personal beliefs reflected in public policy, irregardless of how that might constrain the beliefs of others, is the cornerstone of authoritarianism.

      If the question you ask is "can government do this", you are leaning towards authoritarianism. This is where anti-abortionists live.

      If the question you ask is "should government do this", you are leaning towards liberty. This is where pro-life and pro-choice advocates live.

      If the question you ask is "is it strictly necessary for government to do this", you are advocating for liberty. This is where abortion absolutists live.

      The problem for people who prefer more freedom in a society is that people will inevitably do things you don't like. And the fewer restrictions government is allowed to place on citizens, the more likely a morally horrifying (to you) situation will occur.

      Most people say they want to be somewhere between #2 and #3, but the more you believe in black-and-white, unnuanced, and traditional ideas of right and wrong, the closer to #1 you drift.

      If you believe "people should be free to choose for themselves except ..." and your list of exceptions is full of absolutes as opposed to nuance or situational considerations, you are closer to #1.

      Cultural conservatives (or traditionalists or whatever you wish to call it) lean towards #1 because the world is always changing and, as the preeminent country on the world, America changes as well. The only way to stop change is by force. The "new" way to do things isn't always better, but the "old" way to do things is never perfect. The only way to improve is to try. The only way to try is to change.

      As long as our core ideals remain freedom, taking risks, excellence, and improvement we will continue to dominate the world. If they become confinement, the familiar, mediocrity, and status quo, we will be surpassed by someone else who isn't held back by the glories of the past, but looks towards the challenges of the future.

      1. The desire to see your personal beliefs reflected in public policy, irregardless of how that might constrain the beliefs of others, is the cornerstone of authoritarianism.

        It's also the cornerstone of all law. Law is state enforcement of morality, which is based on the beliefs of members of society.
        Whether the basis for those beliefs are secular, religious, knee-jerk emotion...whatever...doesn't alter the fact that it is all predicated on personal beliefs. It's just that sometimes your personal beliefs are shared by the voting majority, and sometimes they aren't.

        1. No, law is not based on personal morality. In fact, the worst laws are based on morality because what is considered "moral" varies so widely.

          Laws are based on a lot of different principles (like social order, protection of rights, freedom, liberty, etc.).

          And I didn't say that laws based on personal beliefs (much different than morality) were the cornerstone of authoritarianism. I said that your desire to see your personal beliefs turned into law, regardless of how constraining it is to the rights of others, is the cornerstone of authoritarianism.

          And you don't believe that laws should be passed if "your personal beliefs are shared by the voting majority". If you did, you would be pro-choice.

  18. Wasn't abortion originally outlawed after "quickening", roughly 25 weeks? Seems deeply rooted to me.

    Also, wouldn't forcing a woman to carry a child to term, miss work, even perhaps become a stay-at-home mom be considered a taking?

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