In this case, the court could have acted narrowly, in stating that this particular statute was unconstitutional because it could not be enforced without interfering with the mother’s fifth amendment rights against self-incrimination, and her common law doctor-patient privilege. This would have left as a political question to the states as to whether to conditionally remove the privilege or to invalidate the statute, as the states would seem to have under the Ninth and Tenth Amendments.

Instead, they decided to enumerate a right nowhere mentioned in the text of the Constitution, and make the blanket statement that no abortion statute could be enforced contrary to this right to privacy.

If the Supreme Court then has the capacity to enumerate rights not found in the text of the Constitution, then it would seem that it would also have the right to deny rights that are enumerated (see Kelo). If this then is to be the case, then what is the role of the written constitution or the amendment process?

Scott:

There are very few of you. Most pro-lifers oppose contraception, gay rights, and various forms of sexual freedom.

And I would also say that you are undervaluing how important sexual freedom is to women. The pro-life position inherently undervalues that liberty at least as to very early term abortions of zygotes and tiny embryos.

It’s that the LIBERTARIAN position is to protect the woman’s sexual freedom.

It is only the libertarian position if you do not recognize the child’s right to life. I am a libertarian and am pro-life because I value the right to life. I support the use of contraception, but abortion is not contraception.

This would only be true if (1) contraception were 100 percent effective, (2) women didn’t ever change their minds, and (3) all sex was fully consensual (and by the way, there’s plenty of sex that isn’t rape but also isn’t fully consensual in the sense that there is a meaningful opportunity for the parties to use contraception properly).

But in the real world, none of those things are true, which is why the only way to ensure that women are able to have sex without having to fear a pregnancy is by protecting a right to abortion.

The discussion of whether abortion is a right must necessarily be a balance between a woman’s “right” to control her body during pregnancy and a child’s “right” to live. Some people weigh one side more than the other, but to deny that there’s a balance of interest is the height of arrogance.

It isn’t that there isn’t a balance– such a balance is struck by Roe and Casey. It’s that the LIBERTARIAN position is to protect the woman’s sexual freedom. Pro-lifers get to the conclusion they get to by assuming that female sexual freedom is a bad thing.

Dilan Esper: The problem with this is, if “baby killing” were the issue, then there would be plenty of pro-lifers who supported contraception, sexual freedom, the sexual revolution, gay rights, etc. But there aren’t. (See Kristen Luker, Abortion and the Politics of Motherhood.)

That STRONGLY suggests that the actual motivations of pro-lifers have to do with more than “baby killing”.

The problem with your argument is that the abortion right has nothing to do with sexual freedom. Sexual freedom (the right to be free from reproductive consequences of reproductive actions) is embodied in the right to contraception. See Griswold v. Connecticut, 381 U.S. 479 (1965). Once a woman has the right to contraception, the reproductive consequences of consensual sex are determined by the woman.

Want a child? Have unprotected sex. Don’t want a child? Have protected sex.

Abortion therefore has nothing to do with sexual freedom.

The discussion of whether abortion is a right must necessarily be a balance between a woman’s “right” to control her body during pregnancy and a child’s “right” to live. Some people weigh one side more than the other, but to deny that there’s a balance of interest is the height of arrogance.

You might as well argue that pro-choicers – by tending to support welfare, drug use, gay marriage, and abortion, while opposing churches, religious schools, school vouchers, and the military – hate children because they support causes which hurt families and, by extension children.

Because legally, sodomy is often defined as oral as well as anal sex. Of course, this means most heterosexuals also commit sodomy.

Sure, none of this affects you, Prof. Volokh.

This post was actually written by Prof. Somin, not Prof. Volokh.

Gabriel McCall: If your goal is to prevent evil people from seeking and obtaining positions of great power, creating more positions with more power doesn’t actually accomplish that goal as well as you might think.

It depends on how much power those new positions have but, in fact, that is what the concept of checks and balances is all about. County sheriffs in the Deep South and the terrorist organization of which some of them were a part had nearly absolute power over blacks. That situation needed to change and state governments showed no interest in doing anything to solve the problem. There is an empirical question here: has the liberty situation in the South improved since the Civil Rights movement? I think the clear answer is “Yes.”

That said, we cannot just ignore the rhetoric from social conservatives that not only do they disapprove of modern sexual freedoms, they deny that we ought to have the liberty to make those sexual choices in the first place. That is, they disapprove not only of the manner in which folks exercise their individual sexual liberty but they disapprove of that liberty in-and-of-itself.

The problem with this is, if “baby killing” were the issue, then there would be plenty of pro-lifers who supported contraception, sexual freedom, the sexual revolution, gay rights, etc. But there aren’t. (See Kristen Luker, Abortion and the Politics of Motherhood.)

That STRONGLY suggests that the actual motivations of pro-lifers have to do with more than “baby killing”.

Of course, being pro-life doesn’t keep women from having casual sex; it just means that there may be consequences.

David, you just gave the game away. You see, being pro-life is about attaching one specific CONSEQUENCE– unwanted, life-ruining pregnancy– to sex. And that has nothing to do with saving lives. Indeed, it may make 3 lives absolutely miserable. But this consequence must attach to sex.

In fact, casual sex has plenty of “consequences” with or without pregnancy. Nobody can or wants to make it “consequence free”. But there’s no logical reason why this PARTICULAR life-ruining consequence should attach, unless one’s goal is to use babies as an instrument to punish women for being sluts.

Again, legally mandating an additional consequence to women’s sexual freedom is completely anti-libertarian, as well as anti-feminist.

Dilan Esper: And my point stands– pro-lifers tend to think not only that having a libertine outlook on sexuality is bad for women but that having THE FREEDOM to have a libertine outlook on sexuality if one wants to is bad for society (and perhaps women) and that freedom should be taken away.

And that is simply not libertarian.

Yes; the problem is, you’re having both sides of the argument. Pro-lifers tend to think that what they view as baby killing is bad. The notion that it’s about keeping women from having sex is something that only liberal-feminists say.

Of course, being pro-life doesn’t keep women from having casual sex; it just means that there may be consequences.

That’s rather misleading; it implies that the reason for IAC claims is because of inadequate counsel, rather than because convicted defendants don’t have anything to lose and because some courts like second-guessing.

You haven’t spent much time around the State criminal courts have you? You could indict and convict a ham sandwich in most counties, even if the charge was being a turkey sandwich.

A LEGAL SYSTEM that protects the interests of women in being sexual libertines if they wish to is an absolutely crucial component of feminism.

I don’t, however, equate any particular theory of female sexuality with feminism. There are feminists who are quite anti-heterosexual sex (Catherine MacKinnon and the late Andrea Dworkin come to mind), but even those who have a more restrictive outlook on ideal female sexuality still support abortion rights because they know how awful an unwanted pregnancy is for women.

And my point stands– pro-lifers tend to think not only that having a libertine outlook on sexuality is bad for women but that having THE FREEDOM to have a libertine outlook on sexuality if one wants to is bad for society (and perhaps women) and that freedom should be taken away.

And that is simply not libertarian.

Dilan Esper: I have met and talked to very few pro-lifers who attached ANY value to female sexual freedom. It just happens that anti-abortion viewpoints correlate pretty precisely with anti-feminism.

Sure, but only because you persistently, mistakenly, equate feminism with sexual libertinism, thus creating a tautology.

I have met and talked to very few pro-lifers who attached ANY value to female sexual freedom. It just happens that anti-abortion viewpoints correlate pretty precisely with anti-feminism.

There are certainly people who CLAIM to be pro-life and libertarian, but in practice, that’s not really common.

The law’s effect was to require time and a half for hours worked above and beyond the 8 hour limit.

Pitney explained that there is no reason to assume that higher wages promote safer rr’s (and thus facilitate interstate commerce).

pitney saw the law for what it was: an assist to a rent seeking railroad union.

Dilan Esper: Those libertarians who contend that the fetus has rights that trump those of the woman, I suspect, in many instances are not valuing sexual freedom highly enough. And while concern for fetal life isn’t, in isolation, anti-libertarian, believing female sexual freedom to be unimportant is quite anti-libertarian.Pro-lifers are generally conservatives, not libertarians.

To which the response is: Those libertarians who contend that the woman has rights to sexual freedom that trump the right of the fetus to life, I suspect, in many instances are not valuing the right not to be killed highly enough. You lose all your other rights when you’re dead. You’re right that most pro-lifers are more conservative than libertarian, but there are plenty of libertarians who do believe sexual freedom to be important while not holding it dearer than life itself.

You know, gun rights maximalists can say how narrow and meaningless Heller was a million times and it doesn’t make it true. The fact is, having an individual right that precludes gun prohibitions– even if it permits lesser regulations– is extremely important, not the least because it prohibits the type of wholesale governmental gun confiscation that gun rights groups are always claiming they are worried about.

Heller is a meaningful case. Indeed, if it is not overturned by some later Supreme Court, I would predict that it is remembered as a watershed.

This is wrong, because the liberty interests of the woman (and, as someone pointed out, her male partners as well) are very much furthered by the decision. Indeed, legal abortion is a key part of making sexual freedom possible, especially for women.

Those libertarians who contend that the fetus has rights that trump those of the woman, I suspect, in many instances are not valuing sexual freedom highly enough. And while concern for fetal life isn’t, in isolation, anti-libertarian, believing female sexual freedom to be unimportant is quite anti-libertarian.

Pro-lifers are generally conservatives, not libertarians.

This is wrong, because the liberty interests of the woman (and, as someone pointed out, her male partners as well) are very much furthered by the decision. Indeed, legal abortion is a key part of making sexual freedom possible, especially for women.

Those libertarians who contend that the fetus has rights that trump those of the woman, I suspect, in many instances are not valuing sexual freedom highly enough. And while concern for fetal life isn’t, in isolation, anti-libertarian, believing female sexual freedom to be unimportant is quite anti-libertarian.

Pro-lifers are generally conservatives, not libertarians.

The proper response to serial-appeals is to do the trial right the first time. The States spend millions on appeals for IAC that would have been must better dealt with by providing adequate counsel the first time around.

That’s rather misleading; it implies that the reason for IAC claims is because of inadequate counsel, rather than because convicted defendants don’t have anything to lose and because some courts like second-guessing.

But that never happened, and its effects – crowded dockets, frivolous defenses, serial appeals, and, worst of all, an emboldening of criminal behavior – have been with us ever since.

The proper response to serial-appeals is to do the trial right the first time. The States spend millions on appeals for IAC that would have been must better dealt with by providing adequate counsel the first time around.

IOW, I’m very sympathetic to the concern that we waste time rehashing old cases but I think the solution lies in improving the hashing the first time.

Not sure what you mean by a first-order concern, but it’s a pretty important one. When you have to govts that can regulate, you have twice as much regulation.

But the point of incorporation is to remove from State regulation those laws that impinge on the liberty protected by the 14th (a move that would not be necessary if the States could enforce their own Constitutional protections).

For my top-few, I’m going to go with the oldie double-whammy of Meyer v. Nebraska and Pierce v. Society of Sisters (1923 and 1925, respectively). The right to educate your own children in whatever language and school you want is so fundamental I’m embarrassed that the States of NE and OR would dare to pass legislation forbidding it.

As to impact, both have been cited more than 100 times since in support of the proposition that State power is not a blank check to impinge on the rights of citizens in any fashion the legislature can concoct.

Left Coast Conservative: the word “militia” was understood then, and defined today in Federal law as all able bodied male citizens between certain age limits.

That’s a definition of a subset of a polysemous meaning: those who had an enforceable legal duty to respond to an official call-up. The original meaning of the word translates as “defense activity” or “defense service”, and only secondarily as “those engaged in defense activity”, or “those having a duty to engage in defense activity”. The social contract discussed by Locke and the Founders is a mutual defense compact, creating a duty of mutual defense for all the members of society. Subsets of that society might have special legal obligations, as the most fit and as a body that was expected to be sufficient for most foreseeable situations, but in principle it is everybody, both individually and collectively.

So there is an (individual) right to keep and bear arms, but it is also a duty to defend the community. We have a right to do our duty, but the duty is paramount.

“Self-defense” is then a special case of defense of the community, where the member of the community is oneself, the defender is also oneself, and one is responding to a call-up issued by oneself to oneself.

Ricardo: Preventing terrorists from holding positions of government authority strikes me as the clearest argument you could possibly make for granting the federal government more power.

If your goal is to prevent evil people from seeking and obtaining positions of great power, creating more positions with more power doesn’t actually accomplish that goal as well as you might think. Ever hear of the old woman who swallowed a fly?

Mark N.: where are there good lists of important/influential Supreme Court decisions?

We have a spreadsheet of milestone decisions here.

Dilan Esper: Actually, to the extent that libertarians value individual freedom over almost everything else (e.g., give me liberty or give me death, those who trade liberty for security deserve neither), even if one were to assume the quite disputable claim that zygotes, embryos, and fetuses have a right to life, I’m not sure that’s a particularly libertarian concern, especially when prohibiting abortion constitutes such a huge and direct imposition on the freedom of women.

A libertarian who sees unborn children as persons/rightsholders would make the argument that laws against killing people are not an imposition on the liberty of the would-be killers: there is no natural right to violate others’ natural rights, and that point defines the boundary between liberty and license.

With that said, though, libertarian theory as such is silent as to when a developing human becomes a person/rightsholder, and there are libertarians who hold the entire spectrum of views on that subject. That being so, Roe v Wade is not a specifically libertarian nor antilibertarian case.

Goldberg v. Kelly (or Mathews v. Eldridge, something in that line): Say what you will about the expanding definition of property rights, but the idea that the Government can’t take your property without some sort of adequate hearing seems to me a cornerstone of liberty.

Brown v. Allen: Made it much harder, at least for a while, for a state government to throw someone in jail without giving them a fair trial. (Some say it made it too hard to throw someone in jail *with* a fair trial, as well, but that’s a different debate.)

Also, re: Martinned’s comment a ways back about how other countries reduce sentences instead of excluding evidence — That’s actually pretty uncommon, although becoming a bit more well-established. I did some research on this a few years back, and if I remember right, Canada does it occasionally, as do ICTY and ICTR, but that’s pretty much it. (I think I’m forgetting one other notable country — maybe Germany?) At least one district judge has done so in the states; we’ll see if it picks up any traction.

Herb Spencer: The merits of providing a free – read, taxpayer-funded – defense to indigent accused aside, Gideon was as rash an act of judicial lawmaking as the Warren Ct. ever engaged in. The Libertarian approach would have been to stand aside and let the people, directly or thru their elected representatives, legislate such a “right,” which is nowhere found in the Constitution, if they felt a need for it. But that never happened, and its effects – crowded dockets, frivolous defenses, serial appeals, and, worst of all, an emboldening of criminal behavior – have been with us ever since.

Wouldn’t crowded dockets come from the fact that the government assigns taxpayer-funded prosecutors to cases? When one side in a legal case has the resources of taxpayer-funded government behind him while the other has only the resources contained in his pockets, who do you think will win most of the time? You seem to suggest that “frivolous defenses” and “serial appeals” ought to a privilege of the upper-middle classes and the wealthy exclusively.

J. Aldridge: I would put Lawrence v. Texas on the worst list for the simple reason the court had no factual jurisdiction to invalidate such a law (they used fictional jurisdiction concocted by the court).

I’ve also got to ask… what? I’m gonna need a little help to follow your logic train. The Costitution says “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”. The only argument against jurisdiction I can think of would involve invoking the Eleventh Amendment. But the Fourteenth Amendment limits the Eleventh, and even if you think it doesn’t, why pick on Lawrence v. Texas? Why not virtually any other Fourteenth Amendment case? If this isn’t what you mean, please explain what you do mean.