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Post by Born2BBruin on May 5, 2022 19:54:12 GMT -8
The crux of Alito's draft opinion isn't that abortion isn't mentioned as a right in the Constitution. The crux of his opinion is actually this: " The Due Process Clause of the Fourteenth Amendment… has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.' Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted)."This is exactly right and should be the foundation of the SCOTUS ruling that eventually overturns Dobbs v. Jackson. Where Alito stumbles is with the immediately following statement: " The right to abortion does not fall within this category…" ultimately falling violently from the precipice of his own petard when he says, " Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy." Aaron Tang, a professor of law at UC Davis and a former law clerk to Justice Sonia Sotomayor, explicitly shows in today's L.A. Times where Alito failed history. Link: The Supreme Court flunks abortion historyAbortion was legal in every state of the union at the founding of the country, up to the point of "quickening", the first notable movement of the fetus, which often occurs around 15-16 weeks in pregnancy, so at least up to the first trimester. At the time the 14th Amendment was ratified, the crucial moment in Alito's analysis, Tang notes, " The best evidence is that only 16 of 37 states banned pre-quickening abortions when the 14th Amendment was ratified. In the other 21 states, abortion remained perfectly lawful through roughly 16 weeks of pregnancy. As one pastor explained in response to a married woman who consulted him about a pre-quickening abortion, such an act was 'no crime, because the child was not alive.'" Alito gets the law right, but the history wrong, and the actual history of abortion in the United States, by Alito's logic, proves abortion is a right. |
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hasben
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Post by hasben on May 6, 2022 6:44:58 GMT -8
That's a very good analysis and clarification. The problem I see is that Alito will never acknowledge his error or let it influence his position, and even if other justices point it out it will fall on deaf ears. IMO the decision will be made on political and religious grounds. We know where that leans.
I would like to think, as I suspect you do, that the justice's decisions are above any political or religious influence, personal or external, and that they make purely legal analyses, but I can't quite swallow that. If Roe is overturned in spite of the facts you just posted their decision may well illustrate that bias.
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Post by blindness on May 6, 2022 9:07:26 GMT -8
Aaron Tang, a professor of law at UC Davis and a former law clerk to Justice Sonia Sotomayor, explicitly shows in today's L.A. Times where Alito failed history. Link: The Supreme Court flunks abortion historyAbortion was legal in every state of the union at the founding of the country, up to the point of "quickening", the first notable movement of the fetus, which often occurs around 15-16 weeks in pregnancy, so at least up to the first trimester. That was an excellent piece.
Thank god those people who were busy building a nation at the time did not get around to codifying how they handled abortion in the midst of more important things. 'Coz, you know, if they had gotten around to that we would have probably been screwed in perpetuity. 
(Note to B2BB: what follows below is not about you at all. It's just something that really drives me nuts about the ambient politics in this country that continues to have this weirdly small c conservative thread. So take it as a rant directed at no one in particular. Well, maybe at Alito in today's context.)
I think the piece was an excellent rebuke, but as someone who is essentially an outsider and has not been indoctrinated at the right age about the infinite wisdom of a bunch of 18th century people, I find this whole exercise of constantly looking back at that era for guidance to be absolutely ludicrous. It defies common sense end to end, IMO. How can you go forward when you are constantly worried about whether you are straying form the path that was laid out to you by people who held some pretty atrocious views routinely by today's standards. Give them credit for being smart and enlightened people for their time, for having foresight and being on the right side of a lot of issues, study them, erect their statues, but for godssakes, stop referring back to them as if they had access to some divine wisdom that we need to somehow figure out.
I grew up with this kind of deification back in Turkey, and that was about an early 20th century figure and at age 12 I had already decided the whole thing was ridiculous. One of my biggest disappointments in life has been to find out how many common social and cultural threads run between the US and Turkey. Not all of them the kind that I particularly embraced as a young man back in the day, by the way.
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Post by blindness on May 6, 2022 9:32:39 GMT -8
I would like to think, as I suspect you do, that the justice's decisions are above any political or religious influence, personal or external, and that they make purely legal analyses, but I can't quite swallow that. If Roe is overturned in spite of the facts you just posted their decision may well illustrate that bias. Weeeeellllllll ... that is because you folks are not cynical enough about the world.
What are laws but codified means for the powerful to impose their vision of the world on the powerless? And what are principles but merely the paved out pathways to get you where you want to go. If one path is closed, you'll take another one. It is all driven by what order they want to impose on the world, whether they sympathize with the powerless or not, and what you think is the best way to get there. Principles are swappable.
A justice is like everyone else. There is a kind of world they want to see and they will use their position to get us there.
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Post by mhbruin on May 6, 2022 11:02:13 GMT -8
Weeeeellllllll ... that is because you folks are not cynical enough about the world.
What are laws but codified means for the powerful to impose their vision of the world on the powerless? And what are principles but merely the paved out pathways to get you where you want to go. If one path is closed, you'll take another one. It is all driven by what order they want to impose on the world, whether they sympathize with the powerless or not, and what you think is the best way to get there. Principles are swappable.
A justice is like everyone else. There is a kind of world they want to see and they will use their position to get us there.
I agree. I think they decide on the conclusion they want to reach, and then they look for the legal precedent to justify it. There are enough precedents out there, that you usually can find something to justify it. |
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Post by mhbruin on May 6, 2022 11:07:33 GMT -8
I find this whole exercise of constantly looking back at that era for guidance to be absolutely ludicrous. It defies common sense end to end, IMO. How can you go forward when you are constantly worried about whether you are straying form the path that was laid out to you by people who held some pretty atrocious views routinely by today's standards. Give them credit for being smart and enlightened people for their time, for having foresight and being on the right side of a lot of issues, study them, erect their statues, but for godssakes, stop referring back to them as if they had access to some divine wisdom that we need to somehow figure out.
It's all a big fiction. The justices want to make law, but they cannot admit that a group of 9 unelected people are making massive decisions for our country. So they use "the intent of the founders" as a magical incantation to justify whatever they want to legislate. Brown v Board of Education is no more a reflection of the intent of the founding fathers than Plessy v Ferguson was. It's all a big show so you pay no attention to the man behind the curtain (or the people inside the robes). |
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Post by mhbruin on May 6, 2022 18:32:44 GMT -8
This gem seems to have been overlooked. Women should be forced to have babies so that there is a supply for people who want to adopt. And we don't want to make them adopt those dirty foreign babies.
The Handmaid's Tale comes to life. And babies are now a commodity.
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Post by Born2BBruin on May 7, 2022 9:49:51 GMT -8
Some good comments by all posters in this thread. I'm going to try to respond to some of them here. hasben said: If you mean that as an ideal, I agree, and I agree as well that Alito's opinion is sorely lacking in that area; but there are clearly opinions in the history of the court, on both sides of the political divide, that embrace that ideal. blindness said: No offense taken. I don't particularly adhere to the originalists' point of view, although as George Santayana said, "Those who cannot remember the past are condemned to repeat it." I think the point of Tang's piece is that if a justice is going to take an originalist approach to interpreting the Constitution, they're required to get their history right. Also, if an originalist is going to claim the right to an abortion must be balanced against the rights of the unborn child, the originalist must acknowledge the Constitution grants no rights to unborn children anywhere in its text, and neither the founders nor the writers of the 14th Amendment would have recognized any such rights existed. blindness also said: I may indeed not be cynical enough, which is not to say I'm not cynical at all. I happen to think I'm just cynical enough, except perhaps where Wood is concerned on BZOF, but I could be blind to my own shortcomings in this area. OTOH, others perhaps may be too cynical. Cynicism unleavened by optimism runs the risk of devolving into nihilism; cynicism without activism even more so. This, of course, is all well and good; everyone has the right to live their lives as they see fit. But I draw the line at pushing such a philosophy on the young, and young at heart, suggesting they should accept their opponents are too powerful and entrenched while their allies are naught but feckless and incompetent. That is a pernicious poison. And while laws are arguably in one or another always handed down from seats of power, there's no denying the consistent trend from the time of Hammurabi of laws evolving to the benefit of the powerless over the powerful. I'm not claiming the powerful do not have or even will not always have an advantage in the eyes of the law, but to ignore the gains of the powerless, even if those gains were handed down by the powerful, is a certain kind of "blindness" indeed.  Finally... mhbruin said: There certainly appear to be cases where this appears to be true. And I'd agree this is certainly one of them. But I'd argue it's not a question of looking "for the legal precedent to justify it." I'd say it's misapplying precedent to argue for one conclusion or another. There's no doubt Alito's opinion had to rely on an application of the 14th Amendment, as that was the primary foundation of Roe in the first place. But I think it's clear his analysis is fatally flawed in multiple ways, not because of the legal precedents he cites, but how he (mis)applies them, whether deliberately or not being beside the question. But, as I noted above, there are plenty of cases in the history of the court, where precedents have been thoughtfully and painstakingly applied, and further, there clearly are not a bushel of precedents out there arguing both for and against abortion. At the end of the day, we're all broadly in agreement. We just have different perspectives on some of the (perhaps meaningless) details. To me, the most important thing is spread awareness of the flaws in Alito's opinion, and that from a purely originalist perspective, the right to an abortion is protected by the Constitution, and the rights of unborn children are not (which is not to say unborn children shouldn't have rights - that's just a particular flaw of originalism - and an argument for another day). |
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Post by mhbruin on May 8, 2022 9:55:59 GMT -8
>>I may indeed not be cynical enough, which is not to say I'm not cynical at all. I happen to think I'm just cynical enough, except perhaps where Wood is concerned on BZOF, but I could be blind to my own shortcomings in this area.
>>OTOH, others perhaps may be too cynical. Cynicism unleavened by optimism runs the risk of devolving into nihilism; cynicism without activism even more so. This, of course, is all well and good; everyone has the right to live their lives as they see fit. But I draw the line at pushing such a philosophy on the young, and young at heart, suggesting they should accept their opponents are too powerful and entrenched while their allies are naught but feckless and incompetent. That is a pernicious poison.
>>And while laws are arguably in one or another always handed down from seats of power, there's no denying the consistent trend from the time of Hammurabi of laws evolving to the benefit of the powerless over the powerful. I'm not claiming the powerful do not have or even will not always have an advantage in the eyes of the law, but to ignore the gains of the powerless, even if those gains were handed down by the powerful, is a certain kind of "blindness" indeed.
I guess I am pretty cynical. As an avid reader of history, I am pretty convinced that government is usually an exercise in power, not in justice. The rich and powerful generally get a government that helps them, rather than the average citizen. At this point, Republicans, including those on the Supreme Court, are doing their best to see this happen. They see passing these oppressive policies as the best way to gain and keep power.
I think the post-war period in the US was more of an aberration than the norm, and that period is coming to an end.
Maybe I am wrong, and this is just a temporary setback in the rights or women and non-whites, but I fear that I will only see setbacks in the rest of my lifetime.
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hasben
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Post by hasben on May 8, 2022 13:46:48 GMT -8
mhb: I am pretty convinced that government is usually an exercise in power, not in justice. The rich and powerful generally get a government that helps them, rather than the average citizen.
Proof positive: Citizen's United
What balls to name that travesty "citizens" united.
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