In today’s Stop the Beach opinion, Justice Scalia (joined by the other three conservatives) criticizes Justice Kennedy for arguing that what Scalia consider “judicial takings” should instead be handled as violation of the Due Process Clause:
The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). [EDITOR: But cf. Schware v. Board of Examiners, 353 U. S. 232 (1957) h/t Tim Sandefur]
The “logically or not” part gets me; Justice Scalia is not a lower court judge. If he think it’s not logical to strictly segregate economic and non-economic rights, he has the power to do something about it.
Imagine, instead, Justice Kennedy writing this sentence in an abortion case, in response to Scalia:
The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process include the right to have an abortion.
Roe has been around for thirty-seven years now, and it’s high time the conservative Justices stop pretending that a decades-old opinion, on which there is huge cultural reliance (as sexual mores have changed in part to reflect the availability of abortion) is somehow less “precedential” than equally bad opinions from the 1930s, 40s, and 50s.
Of course, Scalia does have an answer to this analogy–we should avoid any decision reminiscent of the dreaded “Lochner era”: “Justice Kennedy’s language … propels us back to what is referred to (usually deprecatingly) as “the Lochner era.”
And here’s my response to Scalia, from the second to last paragraph of my forthcoming “Rehabilitating Lochner:”
Lochner serves as a uniquely important negative exemplar of constitutional error in constitutional law scholarship, op-ed columns and blog posts, and even in Supreme Court decisions. When the Justices (and others) use Lochner this way, as shorthand for what they consider the “activist” sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.
Thanks to Josh Blackman for the tip.
SuperSkeptic says:
Nothing inconsistent about Scalia’s rejection of the analogy. You just have to wait another 30, 40, or 50 years before (logically or not) Roe will be considered as inviolable and sacred as economic liberties are not.
June 17, 2010, 2:24 pmA.W. says:
Well, what i think he is really saying is this.
“I am not about to undo the switch in nine.”
in that, you correctly point out that scalia is deviating from his dedication to original intent. but you can see some jurisprudential logic in that.
But the fact is that there is a deep contradiction at the heart of our privacy doctrine, which is about to come to a head with this health care reform legislation. If it is upheld, it is literally the end of most forms of privacy.
As for the reliance argument, sheesh, what a silly argument. the fact is that full on 70% of the public supports a right to an abortion. So why do we suddenly think that it will be outlawed all over the place if roe was overturned? And certainly the courts, using the power of equity, can give a soft landing to those who shaped their whole lives around sex without consequences (as if there is such a thing).
I mean the courts have been pretty cavalier about upsetting settled understandings on subjects like segregation, etc. And rightly so, but i just don’t understand why abortion should be treated so specially.
the fact is Roe was an unconstitutional decision that has done untold damage to the reputation of the court as an impartial arbiter of the law. And if you don’t think we need that, i will remind you of a little case called Bush v. Gore. We needed someone to be able to step in and decide the matter fairly, but all the blatant activism of the court made it impossible to believe that the Sup. Ct. could be that actor. but if not them, then who?
It needs to be overturned so that we can go back to the Supreme Court as law readers, not law makers.
June 17, 2010, 2:29 pmStan says:
Redebilitating Lochner?
June 17, 2010, 2:29 pmRob says:
This may be an argument tactic I see Scalia take quite often, and for which he is often (unfairly in my view) accused of being inconsistent. That is, he may be taking a position he thinks Kennedy subscribes to, like precedent, even bad precedent, should be upheld, and then using that position to argue against Kennedy. So, perhaps Kennedy in the past has suggested that bad precedent should be upheld (*cough* Casey *cough*), and then Scalia points out that Kennedy is going against some other, potentially bad, precedent. My point is, you could argue to someone who thinks precedent is important that they need to follow bad precedent, even if you yourself don’t actually think such precedent is important to follow.
June 17, 2010, 2:33 pmDavid Bernstein says:
It’s an argument from the plurality in Casey which, IIRC, Scalia pooh-poohed in dissent. But Scalia has often argued that he is a “faint-hearted” originalist because of reliance interests. And I’m sure abortion would be totally or largely unavailable in large swaths of the South and Midwest if Roe were overturned.
June 17, 2010, 2:40 pmOrenWithAnE says:
Scalia is not in the same position that Kennedy is with respect to Roe — being the fifth vote.
“Logically or not” translates to “I might vote with a majority, if it existed, to change this. Notwithstanding that position, I accept the extant precedent (which I do not have a majority to overrule) as good law”.
June 17, 2010, 2:57 pmA.W. says:
David
Again, if the courts are so concerned about reliance, they can use their powers of equity to create a soft landing. Just like they did when they undid separate but equal. The courts didn’t say all schools shall immediately admit peopel regardless of color. they had a phase in process they worked out.
As for the concern that “totally or largely unavailable in large swaths of the South and Midwest if Roe were overturned.”
Sorry, how is that something the Supreme Court should even rightly think about? And even if they do, as this map indicates many states will still allow abortion no matter what the Supreme Court says. So guess what? if you want an abortion, drive for two days, three days max, and get it. it is not worth distorting our constitution to guarantee a person a little extra convenience.
(if the html doesn’t work, here is the link: http://www.usatoday.com/news/washington/2006-04-16-abortion-states_x.htm)
June 17, 2010, 3:00 pmOrenWithAnE says:
Because many centrists may prefer a GOP candidate that will vote against their preference for legal abortion if, on the balance, his votes in total will be more aligned with global preferences than the Democrat.
Conversely, it’s been argued that overturning Roe would help Dems by forcing the GOP candidates to either support such restrictions and alienate moderates or oppose them and alienate the religious right.
Either result is plausible, in my mind — in the sense that there is no sufficient evidence against them.
June 17, 2010, 3:01 pmDavid Bernstein says:
I’m not defending Roe. I’m just pointing out that it’s not coherent intellectually to argue that all sorts of silly precedents from 50, 60 years ago are inviolable, even if reversing them would not be very consequential practically, but Roe is not. Either precedent and reliance are serious constraints, or they aren’t.
June 17, 2010, 3:03 pmp.d. says:
As someone who sympathizes with Bernstein’s view of economic liberties, this line didn’t strike me as sheepish. It could be as simple as the fact that the question wasn’t squarely presented in this case.
June 17, 2010, 3:03 pmSteve says:
So guess what? if you want an abortion, drive for two days, three days max, and get it. it is not worth distorting our constitution to guarantee a person a little extra convenience.
Oh, so it’s “a little extra inconvenience” if you have to drive for three days to get a medical procedure that you may well have an emergency need for. This is why it’s the law of the land, so people who think like you don’t have the power to decide these things for everyone.
June 17, 2010, 3:06 pmOrenWithAnE says:
Because there is value to leaving longstanding incorrect law in place instead of introducing uncertainty into the legal system by rapidly changing precedents.
June 17, 2010, 3:15 pmOrenWithAnE says:
And I am defending Roe, and I agree entirely.
:-)
June 17, 2010, 3:18 pmJustin Martyr says:
Why not Roe?
How about the fact that abortion has arguably been the single most controversial political issue since the decision has passed?
I’m not a legal scholar, but as someone who does not like technocracy, it seems outrageous that a controversial issue – any issue – could be become settled legal precedent without actually becoming settled among the general public.
June 17, 2010, 3:19 pmA.W. says:
David
Well, if all you mean is to pillory his reliance on precedent you are right to an extent, but he’s got two things in his favor. First, those precedents ARE older. Second, there has never been a threat to more or less destroy the court’s independence, like the court packing plan. I mean when I say the court is choosing not to undo the switch in nine, I mean they are choosing not to exercise some of their constitutional duties, to avoid being completely neutered. While that is not ideal, and I think the fear has outlived the danger, I can see the argument. By comparison, they don’t seem to have that dilemma with Roe. If they overturn it, liberals will gnash their teeth, but there has never been a serious threat to their independence. Instead the threat to their independence has been created by Roe itself and once Roe is overturned, the danger will most likely dissipate considerably (although surely it won’t disappear).
Steve
> Oh, so it’s “a little extra inconvenience” if you have to drive for three days to get a medical procedure that you may well have an emergency need for.
Yes, that’s it. States will ban abortion even if the life of the mother is at stake. *rolls eyes* (yes, I am being sarcastic)
> This is why it’s the law of the land, so people who think like you don’t have the power to decide these things for everyone.
Notice, not because its in the constitution, but because you think the vast majority of Americans are too stupid to make up their minds for themselves. Unlike you, I have a little more faith in democracy. Silly that.
And last time I checked there was no catch all provision that said, “and if the supreme court feels that the majority of the American people are going to do something ill-advised, by all means just take away their right to vote on the isuse.”
June 17, 2010, 3:23 pmOrenWithAnE says:
This is wishful thinking. The danger that no Supreme Court Justice will be confirmed unless a party holds 60 seats in the Senate is considerable.
June 17, 2010, 3:26 pmMark Field says:
The whole point of constitutional rights is to protect those who want to speak or even act in ways the majority disapproves.
June 17, 2010, 3:40 pmSteve says:
States will ban abortion even if the life of the mother is at stake. *rolls eyes* (yes, I am being sarcastic)
It doesn’t matter if they do or don’t. The procedure won’t be available. Very few doctors receive the necessary training as it is. And the idea that either the life of the mother is at stake or else it’s a pure gesture of convenience is downright clueless.
Fortunately, women’s liberty interests are protected in spite of the fact that people like you don’t understand these things.
June 17, 2010, 3:45 pmSueSimp says:
For those saying that Roe should be overturned because it’s a controversial political issue that the people should get the chance to vote on, does that also apply for Brown v. Board?
June 17, 2010, 3:52 pmBill Altreuter says:
Saying “sexual mores have changed in part to reflect the availability of abortion” is pretty loaded, since the implication is that there is a class of people who view abortion as merely an alternative means of contraception. I’m not so sure that this is true, and it impresses me as an crypto-attempt at demonizing those people who don’t believe the government should have greater control over reproductive choices than the involved individuals. I’m not sure if that really is the 70% cited above, but I am under the impression that a fairly solid majority favor reproductive choice– I’d be surprised if there is a more popular “libertarian” position on any other issue.
June 17, 2010, 4:00 pmDoc Merlin says:
I know a woman who feels this way. She can’t be bothered to take contraceptives so she has had 3 or so abortions instead.
June 17, 2010, 4:04 pmtheobromophile says:
Silly question: couldn’t the opinion be written so as to avoid any reliance problems? For example, the Court could say that the ruling would take effect nine months from the date of the decision, thus ensuring that no woman would get pregnant while assuming that abortion is available to her. I mean, it’s not wonderfully principled, but it would get the job done.
June 17, 2010, 4:05 pmOrenWithAnE says:
Marijuana decrim received 65% of the vote in a recent ballot initiative here in MA. Take that for whatever you believe it is worth.
June 17, 2010, 4:05 pmOwen H. says:
Because it isn’t the case in front of us.
Objection; assuming facts not in evidence. The sexual revolution started well before Roe. It would be more accurate to say that acceptance of Roe and abortion is in fact a result of changing sexual mores, not a cause of.
June 17, 2010, 4:10 pmOrenWithAnE says:
Except, as explained in Casey, the reliance is not merely in the act of intercourse but the entire structure of our lives.
The Court would have to defer it 18-25 years so that no woman that grew up in a culture of permissive abortion would be denied the right.
June 17, 2010, 4:15 pmDilan Esper says:
Scalia is not in the same position that Kennedy is with respect to Roe — being the fifth vote.
If there is a 5-4 split on a question, isn’t EVERY justice a possible 5th vote?
June 17, 2010, 4:19 pmDilan Esper says:
Silly question: couldn’t the opinion be written so as to avoid any reliance problems? For example, the Court could say that the ruling would take effect nine months from the date of the decision, thus ensuring that no woman would get pregnant while assuming that abortion is available to her. I mean, it’s not wonderfully principled, but it would get the job done.
While I don’t agree with Theobrom about much of anything when it comes to abortion, I think she is right that if the Court ever did overturn Roe, it would probably do something like this.
June 17, 2010, 4:21 pmGuy says:
I’m not sure I understand what’s being said in this post. I don’t think Scalia is saying we should bring back Lochner, I think he’s saying substantive due process is stupid, even though he admits he’s stuck with it.
Scalia’s being consistent here: precedent should be ignored when it expands SDP, and upheld when it restricts it.
June 17, 2010, 4:24 pmA.W. says:
Oren
> Because there is value to leaving longstanding incorrect law in place instead of introducing uncertainty into the legal system by rapidly changing precedents.
Well, they didn’t care very much about that in Brown, Miranda, Lawrence, Roe and so on. indeed, Lawrence more rapidly overturned Bowers than I am proposing to overturn Roe.
Last time I checked, the Federal Government was one of limited powers. They do not have the power to restrain the states unless that power is specifically granted to them. The supreme court has not been granted the power to prevent states from restricting abortion.
Mind you, if all the supreme court said was that you had a right to abortion when your life was threatened, I could have been fine with that. That would have been a perfectly reasonable reading of the right to life actually preserved in the 14th A, to say that the state cannot require you to sacrifice your life for another, even if that other is your child. Indeed, the defenses of self-defense and defense of others would often apply.
But the courts have gone well beyond that. And they have gone well beyond anything that can be reasonably read into the constitution.
> The danger that no Supreme Court Justice will be confirmed unless a party holds 60 seats in the Senate is considerable.
Chicken and egg, my friend. Prior to Roe these confirmation hearings were not half as contentious. Indeed the term “Borking” didn’t enter our lexicon until after Roe, and Roe was a big part of the argument against him. I am sure that is just a coincidence.
Every presidential cycle I see issue ads from groups like naral saying how important it was to vote for a president who will nominate activist justices. I don’t see them doing the same thing in regard to Miranda or any other activist decisions. So if you take abortion off the federal docket, then you suddenly eliminate it as a point of discussion in most federal elections.
> Except, as explained in Casey, the reliance is not merely in the act of intercourse but the entire structure of our lives.
Which then means that Roe itself upset the reliances we had at the time, too. But that was legitimate because… ah, you lost me on that one.
Mark
> The whole point of constitutional rights is to protect those who want to speak or even act in ways the majority disapproves.
Yes, if the constitution actually protects the right. Big if… it is not enough to say that the minority wants something or even ought to have it, but that the constitution actually protects that right.
> The Court would have to defer it 18–25 years so that no woman that grew up in a culture of permissive abortion would be denied the right.
No, simpler than that. give them five years to either make their state law say what they want it to, or to move to a state that does, or choose to live with the new legal regime.
Steve
> It doesn’t matter if they do or don’t.
Its your argument, so if you want to say it doesn’t matter, well, okay then.
> The procedure won’t be available. Very few doctors receive the necessary training as it is.
So you would extend roe to require medical boards to require doctors to learn to do abortions? See how far we go when we legislate from the bench?
> And the idea that either the life of the mother is at stake or else it’s a pure gesture of convenience is downright clueless.
Well, then its good I didn’t actually say that.
Sue
> For those saying that Roe should be overturned because it’s a controversial political issue that the people should get the chance to vote on, does that also apply for Brown v. Board?
Unlike Roe, there is actually something in the constitution on the subject.
Theo
Actually that’s almost exactly how they handled desegregation, delaying actual enforcement for years.
June 17, 2010, 4:55 pmtheobromophile says:
Dilan: oh, I think we still disagree. :) I don’t know if the Court would do that, but think that it is one of many methods that could be used to smooth out the transition, but am not certain that a majority of Justices would put that into an opinion.
Oren: this is true, but it’s utterly without support in the opinion – I mean, it could be true that people have ordered their lives around this (for the better, presumably), or it could not be true, or it could be true but not enough to overcome other considerations, but O’Connor gave us no basis with which to make that determination.
June 17, 2010, 4:59 pmGuy says:
That’s funny, because my copy of the Constitution says that the judicial power of the United States extends to all cases and controversies arising under the Constitution and that that power is vested in the Supreme Court. When you sign a contract with an arbitration clause, you have to abide by what the arbitrator says the contract means.
Don’t get me wrong, I think wrong decisions should be overturned, but it’s important for judges to be able to acknowledge that “wrong” and “wrong in my opinion” are not necessarily coextensive. This is why precedent should not be overturned except in special circumstances (such as a showing of enormous and senseless harm, or of unworkability).
June 17, 2010, 5:07 pmDilan Esper says:
Dilan: oh, I think we still disagree. :) I don’t know if the Court would do that, but think that it is one of many methods that could be used to smooth out the transition, but am not certain that a majority of Justices would put that into an opinion.
Well, let’s put it this way. The reliance argument is extremely serious. There’s several components to it:
1. Someone’s on her way to the abortion clinic when the Supreme Court overturns Roe, and her state has a self-executing ban that comes into effect immediately in that event (and some states do have these).
2. Someone was not as careful about birth control as she might have been otherwise, and got pregnant thinking that she had a backstop in her constitutional right to an abortion. She then can’t get an abortion and argues that she would have used /insisted on a second backup method of birth control had abortion been illegal.
3. Someone who does not want to have a child (or does not want one right now) has ordered her relationships, philosophy and approach to her sexuality, including, perhaps, entering into a long-term sexual relationship with a man, based on her assumption that abortion rights were legal.
I suspect that almost everyone on the Court is sympathetic to reliance argument 1, and I suspect that reliance argument 2 engenders enough sympathy that you could never get to 5 votes without addressing it as well. I suspect that the Casey majority was very concerned about reliance argument 3 as well, but any future majority for a decision that overturned Roe would not be.
So that’s why I suspect that the Court would do something along the lines of the 9 month stay if they ever overturned Roe. It’s likely the only way to count to 5.
(That said, I also suspect that, for all sorts of reasons, Roe is likely to never be overturned. But that’s a different issue and I am perfectly willing to assume your premise for purposes of the discussion.)
June 17, 2010, 5:12 pmGuy says:
Wouldn’t that retroactively moot the case by showing there was never any case or controversy? Essentially making it an advisory opinion? Even though QI cases are often mostly about the precedent, there at least exists the fact that the precedent is a step toward the ultimate decision of the actual controversy with respect to the parties involved.
Then again, I guess it kind of is the mirror image of recurring but evading review.
June 17, 2010, 5:15 pmRandomEngineer says:
I used to think that, but not anymore: Someone thinks that government can limit speech when citizens organize themselves in ways where they could speak too much, in the judgment of the reigning majority…
June 17, 2010, 5:21 pmA.W. says:
Guy
> That’s funny, because my copy of the Constitution says that the judicial power of the United States extends to all cases and controversies arising under the Constitution and that that power is vested in the Supreme Court.
Absolutely. And that empowers them to enforce the constitution against the states and federal law and treaties against the states. It does not grant them the power to enforce their policy preferences, though, when it is not granted in the constitution, federal statute, or a treaty. Thank you for playing.
> This is why precedent should not be overturned except in special circumstances (such as a showing of enormous and senseless harm, or of unworkability).
So power, once usurped, should never be given back. Interesting.
> Wouldn’t that retroactively moot the case by showing there was never any case or controversy?
By that logic, Roe was an advisory opinion. She wasn’t pregnant when the Supreme Court ruled.
The standard they offered for hearing it anyway was that the issue was something like “capable of repetition and yet evading review” because of course the courts will never move quickly enough to give the supreme court a chance to discuss the issue.
June 17, 2010, 5:24 pmDavidBernstein says:
That’s coherent. It’s just not consistent with any jurisprudential theory I know of beyond the “I don’t like substantive due process” school of jurisprudence. Okay, it’s also consistent with a general opposition to “judicial activism,” but that’s not Scalia.
June 17, 2010, 5:25 pmtheobromophile says:
Dilan: understood.
Now, I was in high school when Casey was handed down, but I’m pretty sure that times have changed since then – or at least times are not what Justice O’Connor thought they were. Birth control, medical care, maternity and paternity leave, and a host of other legal and technological protections are available to women that were not available when many of the the current Justices were growing up – or even when their children were growing up. For the most part, a reasonable woman could manage to order her life so as to avoid an unwanted pregnancy (and, certainly, many do) with the tools available to her right now.
I don’t want to ruin one of the few times in which we are not at each other’s throats, but it seems to me that the million-plus women who have voluntary (i.e. non-health-related) abortions every year have the tools to prevent pregnancy, but choose to not use them. That might be a reliance interest (a la Casey and your #3), but is not really something that tugs at my heartstrings – or my head. Some of reason why I find Casey to be so bizarre in its “reliance” reasoning is the downside to it: millions of women, who rely (knowingly or not) on abortion, end up pregnant when they never would have otherwise. Now, paternalism is no way to run a country, nor to resolve our most contentious issues, but, if we’re talking about reliance, women’s well-being, and the way they order their lives w/r/t abortion’s legality, it seems somewhat odd to not also calculate the costs of such reliance (i.e. additional unplanned pregnancies).
(Of course, I’m operating under the assumption that a woman would prefer to not get pregnant than to get pregnant and abort, and am further assuming that she would use birth control to make this happen, not chastity.)
I’m not trying to start a fight, but am wondering if you (or anyone else) has something to say about the potential for available abortion to increase the number of unplanned pregnancies.
(Also, please forgive me if I don’t respond for a bit; I have a horrifically busy evening and won’t be in front of the computer again until midnight my time.)
June 17, 2010, 5:29 pmGuy says:
So then how do you distinguish the judicial power from arbitration? Also the question of “policy preferences” is a separate question from explicit authorization, it may be true that the less explicit the textual statement, the more likely it is to be the result of a policy preference, but that doesn’t mean that there exists some magic line of explicitness beyond which can only possibly lie policy considerations.
Try reading the sentence before the one you’re responding to.
Maybe I have a terrible read on Scalia, but I think he honestly considers SDP dangerous because it empowers judges with too much discretion to override popular sovereignty. He doesn’t mind taking a generally conflicting view because he figures as long as SDP exists he can have a role in keeping it limited. I think it’s annoying how he has a tendency to treat rights he doesn’t believe in with less respect than those he does, but what can you do? It doesn’t strike me as unprincipled, just undeferential to other legal opinions.
June 17, 2010, 5:33 pmjjv says:
It is libertarian nonsense to compare the regime of Lochner to that of Roe. Roe was reviled from the start and there have always been dissents from its premises. The expungement of the Lochner era was adopted by both parties and every Justice since FDR replaced the last of the “Four Horsemen.” Legislative and judicial assaults on Roe never cease. An entire Party is dedicated to its end. Where is the analogy to Lochner where only Randy Barnet and a few people who yearn for the end of public financing of roads want the return of judges determining economic questions.
June 17, 2010, 5:37 pmDilan Esper says:
Wouldn’t that retroactively moot the case by showing there was never any case or controversy? Essentially making it an advisory opinion?
Getting away from the question of what the court will do to a pure question of power, I think the Court’s power to carry out the mandate of its decisions in any reasonable manner is confirmed in Brown II, where they ordered the integration of segregated schools with “all deliberate speed”.
So I don’t see why they can’t stay the mandate of an abortion decision nine months.
June 17, 2010, 5:38 pmGuy says:
Or do you think you can sign a contract with a binding arbitration clause but then ignore the arbitrator’s ruling when you disagree with it because he “usurped his power”, as said power apparently in your view only consists of interpreting the contract consistent with your understanding?
June 17, 2010, 5:41 pmDilan Esper says:
Theo:
Look, you may be right that there is a set of women who (a) had consensual sex, (b) got pregnant, and (c) might not have gotten pregnant had abortion been illegal, because they were more likely to use additional methods of birth control / be more conscientious in that situation. (We’ll call these “group 1″.)
Weighed against that are two other groups of women:
2. Women who (a) had consensual sex, and (b) felt the prospect of unplanned pregnancy is so awful and the possibility of contraceptive failure to be sufficiently significant that they would not have felt comfortable having intercourse at all if abortion were unavailable to them.
And:
3. Women who (a) had consensual sex, (b) got pregnant (either through contraceptive failure or because they did not use a reliable method), and (c) would have gotten pregnant anyway even if abortion were illegal, but who now do not have the right to an abortion.
I don’t think the reliance argument is premised on the idea that there are no women, or no significant women, in group 1. Rather, it is premised on the idea that the interests of groups 2 and 3 are significant enough to constitute cognizable reliance interests under the Court’s stare decisis doctrine.
By the way, I really don’t take a position on whether all this is right, partly because I think the Court’s stare decisis doctrine is so incoherent that you can make any argument you want consistent with it. But these are certainly the sorts of interests that are in play here, along with the more general interest (which I understand you reject) that women have in being able to order their sex lives on the premise that abortion is going to stay legal.
June 17, 2010, 5:50 pmAnonsters says:
So you think corporations are citizens?
June 17, 2010, 5:59 pmGuy says:
Never mind, I get what you’re saying better, but just because Scalia doesn’t think precedent is always an inflexible trump doesn’t mean he can’t consider it relevant at all.
June 17, 2010, 6:03 pmOrenWithAnE says:
Not if he is on the side that has 4. On abortion, Scalia is either 4th vote or the 6th and neither matter.
June 17, 2010, 6:47 pmMark Field says:
I don’t necessarily disagree, but I was responding to a different point made by another poster, namely (paraphrasing) that courts shouldn’t decide issues when the majority is undecided.
Cute, but of course that’s not my position. My position is that corporations aren’t “persons” for purposes of the Constitution.
June 17, 2010, 6:56 pmOrenWithAnE says:
What reliance interest was there in Miranda or Bowers?
[ Brown and, in general, the rectification of slavery and Jim Crow are, in my mind, sui generis. ]
On tautological grounds I don’t think you can call 6/9 justices and 50% of the American public unreasonable.
No, you ensure that there will always be 41 Democrats unwilling to let a single anti-Roe vote onto the Court until the precedent is restored.
Illegality cannot create reliance. You cannot have a right to be forbidden something and so you cannot rely on the government continuing to restrict your freedom.
Agreed.
June 17, 2010, 6:59 pmSara says:
June 17, 2010, 7:32 pmDilan Esper says:
What reliance interest was there in Miranda or Bowers?
In Miranda, the answer’s easy. If police interrogated suspects without giving warnings (which weren’t required), and got confessions, all those confessions get thrown out.
Now, of course, the Court handled that problem in those days by making the decision non-retroactive. You can’t do that anymore under Teague.
But, of course, this is all more proof that you can always argue a reliance interest if you want to. Which is why I stand by my response to Theobrom– the doctrine’s so incoherent on reliance that it really doesn’t add anything to the stare decisis analysis.
June 17, 2010, 7:58 pmAlexia says:
And of the 3 women I know who became pregnant while using some form of contraception….all 3 chose to have their babies. I met a drunk woman in a bar bathroom once who told me she had them “all the time.” And I had another friend who aborted her baby because the father was black, and she was afraid her family would be upset.
So, it’s certainly not all about convenience, I suppose.
June 17, 2010, 8:29 pmRandomEngineer says:
No, I think a corporation is a tool which citizens can use to exercise their right of free speech/press while arranging themselves with their freedom of assembly/association. That comparison to a tool is what someone else told me recently who also doesn’t believe corporations are persons.
June 17, 2010, 8:41 pmAnonsters says:
So who, exactly, speaks through the “tool” of the corporation? Be specific.
June 17, 2010, 8:47 pmKamal says:
David, I will certainly look into this more, but why would Scalia find the Lochner era to be a bad thing? The results of their decisions seem to favor what Scalia thinks society should be. Is it the manner in which the rulings were based? Do you have any good articles/references on this topic?
June 17, 2010, 8:48 pmA.W. says:
Guy
> So then how do you distinguish the judicial power from arbitration?
I don’t understand your question. You have a problem with arbitration clauses?
> Or do you think you can sign a contract…
I think that you can write whatever contract you want.
But the attitude that you are trying to elicit from me, that however clearly erroneous an interpretation of the constitution is by the Supreme Court, that it is binding is ludicrous. If the Supreme Court said tomorrow that the constitution declared that one virgin shall be sacrificed to the sun god Ra on a bi-monthly basis, would you obey that too?
The attitude that the constitution is only what the Supreme Court says it is, is a servile attitude unsuited for citizens of a republic.
Seriously if they are allowed to put anything in it at all, why bother to write a constitution at all? Why not simply say, “do whatever the Supreme Court says”?
> Also the question of “policy preferences” is a separate question from explicit authorization
Not at all. They are only empowered to enforce the Federal Constitution, Statutes or Treaties. If its not in them, then its not within their power.
> it may be true that the less explicit the textual statement, the more likely it is to be the result of a policy preference, but that doesn’t mean that there exists some magic line of explicitness beyond which can only possibly lie policy considerations.
By less explicit you mean, not there at all.
> What reliance interest was there in Miranda or Bowers?
Well, let’s see here. Relying on the non-existence of the requirement of the warning, Miranda was tried and convicted of a crime. The state relied on this black letter law rule that no warnings were necessary only to have the supreme court pull the warning requirement out of its keister and overturn the conviction.
And Bowers? States passed anti-gay laws and even enforced them in reliance of the rule in bowers. And society shaped itself around the fact that homosexuality was criminal conduct in many states. I wouldn’t be surprised if you didn’t like those reliances, but there you go.
> On tautological grounds I don’t think you can call 6/9 justices and 50% of the American public unreasonable.
At one point hatred of black people was the opinion of a majority of the Supreme Court and more than 50% of the people, too.
> No, you ensure that there will always be 41 Democrats unwilling to let a single anti-Roe vote onto the Court until the precedent is restored.
Do you really think even the most liberal justice would reinstate roe after it is overturned? Do you think they would do anything so nakedly political?
> Illegality cannot create reliance
Agreed. Roe was an illegal decision, thus no reliance.
Or, no, you mean the fact the conduct was banned. Which is such a blatantly goal-centered principle, its actually funny.
No, we should be able to rely on the adjustments in social relationships that results when abortion is illegal. Like when people had sex, they had to make sure it was someone they could tolerate in their lives, for the rest of their lives (or at least the next 18 years). Because even with birth control, there was the chance of failure. This meant that wives knew that if they had sex outside of marriage they stood a real risk of conceiving a child that obviously wasn’t her husbands. Thus cheating occurred surely less often. And on and on it goes. These are reliances that had as much right to be respected as the reliance on the ability to kill what might be a person. In fact at the 8th month, its kind of hard not to argue that it is a person.
June 17, 2010, 8:59 pmDavid Bernstein says:
I think that’s generally correct, plus he really hates Roe. But according to Scalia’s own expressed premises, SDP should be wrong or right because it’s the right or wrong interpretation of the D.P. Clause; if he’s avoiding enforcing SDP because it gives judges too much discretion, that’s his own political views, not the Constitution.
The better argument, perhaps, for Scalia would be that he’s adopting a rule of construction, not interpretation–that even if SDP is correct, judges should put a high burden of proof on litigants to identify SDP rights, because that’s consistent with the modest role judges have in our system, and comports with historical evidence showing that judges can’t control themselves. That would be a much better argument, IMHO, and it would even help explain incorporation, less danger their since text-based.
June 17, 2010, 9:06 pmKamal says:
Are you joking? This is exactly what a republic is founded on; giving up your right to decide to someone who knows better than you. Don’t like it? Advocate for democracy.
June 17, 2010, 9:06 pmChrisTS says:
Thanks for stating the obvious, Mark.
Many matters are ‘controversial:’ is a brain-dead person dead, and who decides? are african-americans full persons or only 3/5 of persons? can Congress refuse to citizens the use of ‘recreational’ substances – or any substance the Congress thinks is naughty?
Poor J. S. Mill must be rolling over in his grave when he reads this kind of ‘but the majority must decide for all’ claptrap.
I am not a genuine libertarian, but I do agree with some tenets of libertarianism, including: “Keep your government out of my doctor’s office and off my body.”
June 17, 2010, 10:42 pmMark Field says:
If corporations aren’t “persons”, then they can’t assert their own rights under the 14th A. The individuals who use a tool may be able to, but the tools can’t.
June 17, 2010, 10:44 pmChrisTS says:
Fun, Kamal. But, for the less subtle, perhaps we should amend your comment:
giving up your right to decide for everyone else to someone who
June 17, 2010, 10:45 pmknows betterrespects the autonomy and liberty of others more than you…….ChrisTS says:
Doc Merlin:
Then you know a woman who is incredibly stupid about her own health. (I imagine she is none-too-smart about her poscketbook, either.)
Equally anecdotally, I know several young women [students] who were convinced by their boyfriends that contraception is ‘unnatural.’ Aside from the boys’ not wanting to use condoms, they apparently were under some illusion that female contraception would interfere with sex[iness]. So, the girls went along and then ended up pregnant. Let’s punish them, shall we?
June 17, 2010, 10:51 pmGuy says:
The attitude is that people don’t get to ignore the Supreme Court just because they disagree, unless it’s your goal to cause a Constitutional crisis and the collapse of our civilization. Your post is filled with assumptions that the Court is making things up that aren’t there. You can reasonably think that Roe was wrongly decided, but if you can’t even understand the other legal position, you’re not trying to be fair, it’s not coming from nowhere.
I’m talking about arbitration because I want you to tell me how wrong the arbitrator has to be before you ignore their decision. Legal error is not a basis for nullifying an arbitral award.
June 18, 2010, 1:42 amGuy says:
I’m just gonna come out and ask it: what’s wrong with having philosopher kings? It’s not like we don’t have a system in place that seems to be working pretty well. And there’s always the Constitutional amendment process to correct the Supreme Court if they make an error while faithfully interpreting the Constitution (and I don’t think any Justice is not faithfully interpreting the Constitution).
June 18, 2010, 1:49 amGuy says:
I think Justice Scalia does see it in the Constitution as the role of judges, based on separtation of powers and the rule of law, but I guess that’s essentially what your second paragraph is saying. You’re right that Scalia is often vague about what the Constitution means versus how judges should approach it.
This whole thing is very much like Scalia’s preferred textualist interpretive method for statutes. On the one hand, empirical evidence as well as theory seems to indicate it’s not as good as other theories for giving laws the meaning Congress intended*. But textualism is aimed at reducing judicial discretion, preventing considerations of policy by the judiciary, making the law predictable, and forcing Congress to craft laws and policy more carefully. I tend to think all of these “goals” are policy views best left to the legislature (I don’t know why they couldn’t mandate textualism if they wanted to, in the meantime courts should choose the best method for determining their will), but Scalia likely considers them benign enough to be worthwile.
*There are mathematically rigorous ways of defining “the will of Congress”, despite the insistence of some to the contrary.
June 18, 2010, 2:01 amOrenWithAnE says:
The government cannot claim a reliance interest.
June 18, 2010, 2:10 amtheobromophile says:
Dilan,
I’m sorry if I haven’t been as coherent as I could be. Backing up a smidgen: a stay of implementation of a ban would solve some, but not all, reliance problems in abortion. Breaking it down by verb tense, women who had sex (at the time of a hypothetical decision that would allow states to outlaw abortion), or are having sex (and need time to transition to more reliable birth control, talk to their doctors, etc.), would be helped by my proposed nine-month stay.
Now, focusing on the third group of women (those who will have sex at some indefinite future time): Casey indicated that there is an interminable reliance interest in abortion at this point, because society has been ordered around its availability. Now, I absolutely get what you are saying about incoherent reliance jurisprudence, but, even by those loose standards, the idea that you cannot ban something in the mid-90s because someone in 2010 will rely upon what happened in the 1970s and 1980s seems… odd.
I guess I just don’t even see that as a reliance matter; to reduce it to verb tense, it’s a “should” or “will” issue, not a “have done” or “am doing right this second” issue. (I’m not trying to disparage your viewpoint nor write out of existence that group of women whom you’ve brought up as group #3 and then #1; I’m just filing it under a different heading.)
Functionally, we’re probably in agreement that a hypothetical Supreme Court decision which overturns Roe should (as a common-sense issue, not necessarily a jurisprudential one) include a delayed implementation. Of course, this entire discussion could have as much connection to reality as a debate over the proper way to ride a unicorn.
June 18, 2010, 2:25 amGuy says:
English, not Western! Unicorns are too dainty for those heavy western saddles.
June 18, 2010, 2:33 amAnonsters says:
Meat and drink for a debate about law.
June 18, 2010, 8:23 amS says:
Saddle? What are you? Insane?
You must have a pure heart and ask their permission.
June 18, 2010, 8:32 amA.W. says:
Kamal
> Are you joking? This is exactly what a republic is founded on; giving up your right to decide to someone who knows better than you.
Not entirely, given that you can vote the guys out. Can’t do that with the supreme court.
Guy
> The attitude is that people don’t get to ignore the Supreme Court just because they disagree
So we must obey the supreme court no matter what they rule, however contrary it is to the constitution? If they declare themselves to be the permanent rulers of this country and that their titles will be hereditary, I guess we have to go along, right?
Now I haven’t advocated getting to the defcon 1 crisis of other parts of the government declaring a supreme court pronouncement unconstitutional. Its not that serious by a long shot. but the idea that we should obey NO MATTER WHAT is servile and unsuited for free men.
> You can reasonably think that Roe was wrongly decided, but if you can’t even understand the other legal position, you’re not trying to be fair, it’s not coming from nowhere.
Its coming from other, equally erroneous precedents. And laughably faulty reasoning. All to pretend the constitution says what it doesn’t.
The doctrine of privacy is a joke. A complete joke. It is applied with absolutely no consistency. http://allergic2bull.blogspot.com/2010/06/has-health-care-reform-overturned.html
> I’m talking about arbitration because I want you to tell me how wrong the arbitrator has to be before you ignore their decision.
That’s a matter of how the contract’s arbitration clause is written and thus irrelevant to this discussion.
> I’m just gonna come out and ask it: what’s wrong with having philosopher kings?
Thus the servile attitude writ large. I am continually shocked and saddened at how few people believe in government by the people, of the people and for the people.
> And there’s always the Constitutional amendment process to correct the Supreme Court if they make an error while faithfully interpreting the Constitution (and I don’t think any Justice is not faithfully interpreting the Constitution).
But according to you, whatever they claim the constitution says is final. So suppose we manage to pass an amendment that says, “the regulation of abortion shall hereby be reserved to the states.” But according to you, the supreme court can claim it actually says, “each member the supreme court shall be entitled to a harem of no less than 5 virgins” and however at odds that reading is with the text, we must obey. Indeed, we could pass an amendment abolishing the supreme court, and by your reading, the supreme court could read the amendment out of the constitution.
As for the claim that every justice is faithfully following the constitution, um, sorry, but any justice who pretends that the constitution literally changes meaning over time is not even faking it good.
Oren
> The government cannot claim a reliance interest.
Well, isn’t that convenient? So the only ones who can claim reliance are those who have positions you prefer.
By the way, what about the victims of Mr. Miranda’s crimes, or the people he might also victimize if let out? Do they have a reliance interest in him staying the f— in prison until he serves his sentence?
June 18, 2010, 9:10 amtheobromophile says:
Now we’re saddling up those unicorns!? While I agree that an English saddle would be preferable to Western, neither one would match particularly well… anyone feel like finding a nice, white saddle to coordinate with the horn?
Also, why not ride bareback?
June 18, 2010, 10:01 amOrenWithAnE says:
Not healthy for the rider or the steed.
June 18, 2010, 10:51 amLinus says:
Well, they have an interest, sure. But in what sense could you argue that they have a reliance interest?
(On a side note: Ernesto Miranda was not released as a result of the Miranda decision. He was retried without his confession, and reconvicted.)
June 18, 2010, 11:06 amA.W. says:
Linus
> Well, they have an interest, sure. But in what sense could you argue that they have a reliance interest?
Yeah, why should anyone be able to rely on an effective justice system. *rolls eyes* Its not it serves any important purposes.
June 18, 2010, 12:25 pmJeff Black says:
I can’t speak for AW but I believe I understand the legal arguments behind Roe but I’ve never heard anyone explain them to me in a way that suggested that such arguments were based in any way on the text of the Constitution. My Con-Law professor’s explanation boiled down to: women should have the right to decide what they do with their bodies because some parts of the Constitution protect privacy interests of some people in some situations. If that’s even an attempt to base Roe on Constitutional text, it is a very weak attempt. In my mind, Roe was wrongly decided because the majority did not even attempt to base their ruling on the text of the Constitution.
Don’t get me wrong, I don’t buy Justice Roberts’ “balls and strikes” philosophy of judging. Applying vague Constitutional language to every-day life is difficult stuff requires Justices to make difficult decisions but you have to at least try to remain faithful to the text. For this reason, I have sympathy for decisions that interpret the commerce clause to allow broad federal power (although I disagree with such decisions) because at least in those decisions the Justices are actually interpreting the text rather than making stuff up as they go along.
June 18, 2010, 12:29 pmDavid M. Nieporent says:
Unless those women run restaurants and don’t want to hire black people…
June 18, 2010, 12:37 pmLinus says:
Maybe you should explain what you think a “reliance interest” is, because it doesn’t look like what you think it is is what I think it is.
I’ll be more direct. A reliance interest is not a mere interest in relying on something. A reliance interest occurs when you have done something or refrained from doing something in reliance on a certain set of circumstances.
If you want to tell me, for example, that someone signed a five-year lease on a Phoenix apartment because they thought Miranda’s confession could be used against him in court (making a conviction almost certain), but they would have moved out of town had they known the confession would have been excluded (making a conviction merely likely), then, well, all right. But that’s getting pretty creative.
Otherwise, it sounds like you just think a reliance interest is the interest someone has in relying on something. And I agree with you that we all should be able to rely on an effective justice system (even if I don’t agree that effectiveness should always trump other considerations), but our interest in that reliance is not a reliance interest as that term is being used.
June 18, 2010, 12:59 pmSuperSkeptic says:
(emphasis added)
What’s wrong with abolishing the legislature and just having the president become a dictator? It might work well for awhile. The fact that the system “seems to be working pretty well” is not evidence that we should maintain it in perpetuity as an improvement. Honestly, I tend to think it is “working” in the sense that it is buttressing a collapsing system – you know, the republic.
June 18, 2010, 1:26 pmJoe says:
The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liberties
I doubt very much this is true as an absolute measure. The cited case doesn’t prove otherwise; the page cite has sentiments such as “In doing so, it has consciously returned closer and closer to the earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs so long as their laws do not run afoul of some specific federal constitutional prohibition or of some valid federal law.”
The editor note points out that regulations of “injurious practices” and so forth — which applies to non-economic liberties too btw — does not leave open any law. The right to choose a lawful profession even if it denies your talents is a clear example. Also, how can substantive due process not apply in some fashion to “economic liberties” when the clause itself also protects property? The incorporation of the takings clause underlines the point even without noting that many “economic” liberties has non-economic components [e.g., the right to buy certain things like contraceptives or the ability to use the property in question for various purposes].
The “logical” comment of course is a toss in to retain the support of Roberts and Alito, who is not so willing to support blunt rejection of long held precedent, and are willing to be somewhat crafty in so doing.
June 18, 2010, 1:30 pmA.W. says:
Linus
> A reliance interest occurs when you have done something or refrained from doing something in reliance on a certain set of circumstances.
Well, actually it was not defined quite that narrowly in Casey. By the Casey concept of reliance, Miranda easily passes.
But even by that definition, well, let’s see here. The state prosecuted the man without giving Miranda any warnings, and indeed refrained from giving any warnings because it believed it didn’t have to. It expended taxpayer dollars on it. And then the supreme court pulled the rug out from under them.
And by the way, they didn’t apply that retroactively, either. So basically Miranda and Miranda alone got a get out of jail free card based on a ruling the supreme court pulled out of its hindquarters.
> If you want to tell me, for example, that someone signed a five-year lease on a Phoenix apartment
See, abortion wouldn’t typically pass that test. Certainly wouldn’t if you said that overturning Roe wouldn’t apply for nine months.
So your concept of reliance is a little selective, to say the least.
June 18, 2010, 2:04 pmDilan Esper says:
Also, why not ride bareback?
Because it increases the abortion rate?
June 18, 2010, 2:05 pmRandomEngineer says:
Well, that would depend on what person(s) are in charge of the corporation, would it not? Since there are numerous possibilities, that is difficult to answer with specificity.
There is a local group fighting a zoning change near my neighborhood which would allow for a large distribution warehouse to be built. I don’t know for sure who is speaking through this group either. I also don’t know whether it is incorporated. Whether it is or not makes little difference about the opinion the group is expressing. To be persuasive to the local politicians, the group would likely want to appear as large as possible. But they have no obligation to document with any exactness who they represent.
June 18, 2010, 2:20 pmLinus says:
Not really. The Court phrased it better than I did, obviously, but, well: “The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application.”
I agree with you, the goalposts look a lot nicer over here than they did over there. Look, your comment was about Miranda’s victim(s) and future potential victims’ reliance interest. And it’s just not there, unless you want to posit something like the tortured and creative fact pattern I did. Now you want to talk about the government’s reliance interest, that’s a different story. Oren above says the government cannot claim a reliance interest. And I have nothing to say on whether that is true or whether that should be true. But if you’re trying to argue to me that the government can have (independent of claim) a reliance interest, then yes, I agree with you, they can, but remember – I never said they couldn’t.
That’s one hell of a get out of jail free card, considering the guy stayed in prison until paroled.
Not a test, just an example.
That’s fine. My remarks are addressed to Miranda, not Roe. Although some commenters upthread have some pretty decent arguments with respect to Roe, but I don’t know.
In order to reach this conclusion you have had to assign to me a position on reliance interests at stake in Roe (and maybe Casey), when I have expressed no such positions. In light of that, do you want to refine your conclusion at all?
June 18, 2010, 2:40 pmA.W. says:
Linus
You are ignoring the very much more expansive language about reliance found in Casey:
> To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that, for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives… The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
So even their very thoughts have been influenced.
> Look, your comment was about Miranda’s victim(s) and future potential victims’ reliance interest. And it’s just not there
Its as there as the notion that abortion should be upheld because otherwise women might not be able to work as semi-equals.
> I never said they couldn’t.
Fair enough.
June 18, 2010, 2:49 pmLinus says:
You’re seriously arguing that members of the public pre-Miranda “made choices that define their views of themselves and their places in society, in reliance on” the admissibility in criminal trials of confessions that were obtained without the prophylaxis of defendants’ being fully informed of their rights to counsel and against self-incrimination?
I’m (still) not saying I buy the Casey argument, but it is a lot more plausible than this.
June 18, 2010, 3:09 pmA.W. says:
Linus
I think ordered their thinking and living around the Miranda trial being over. Including whoever was his victims.
June 18, 2010, 3:27 pmA.W. says:
Linus
Anyway, fun sparring with you and others. have a good weekend.
June 18, 2010, 4:57 pmGuy says:
The theory of substantive due process is that the word “liberty” in the due process clause embraces certain kinds of inherent rights or even all forms of liberty that can be imagined, and that all denials of any sort of liberty need to be justified by pointing to someone else’s rights to life, liberty, or property that are being protected. Even the most narrow readings of the clause (liberty just means not being in jail) are essentially still substantive: You can’t make not being in jail a crime. I’ll admit that reading liberty to include the right to an abortion is hardly an inescapable conclusion of the text, but basically the point is that the banning of abortion doesn’t work to the benefit of anyone else or protect anyone else’s rights. It’s difficult to justify a ban unless you conclude (as Casey did), that the state has a legitimate interest in protecting the unborn, presumably because they are “persons” or quasi-persons under the Constitution.
June 18, 2010, 7:24 pmGuy says:
Part of the reason why Roe seems, to some, not to be based in text today is that the relentlessly libertarian interpretation of the Due Process Clause it relies on is no longer in vogue.
June 18, 2010, 7:36 pmGuy says:
Maybe that was phrased badly, but I don’t see how letting judges limit the power of government pursuant to their Constitutional authority is any more “servile” than letting the whims of the majority redefine my rights at will.
June 18, 2010, 7:52 pmGuy says:
I didn’t mean to say judges should make policy, I merely meant that we should trust judges to faithfully interpret the Constitution, and to yield to their judgment when we disagree. I certainly don’t think we should leave binding interpretations of the Constitution to uninformed people who are not bound by a code of ethics or sense of professional responsibility.
June 18, 2010, 7:54 pmJeff Black says:
I understand substantive due process and its origins.
June 18, 2010, 8:41 pmGuy says:
I don’t understand. Surely you admit it’s a liberty, insofar as a freedom to obtain an abortion (and more generally, the freedom to structure one’s own life and familial relations) is a freedom to do something, i.e. “liberty”. Substantive due process, broadly understood, isn’t exactly a list of discrete rights, its a general freedom from arbitrary government coercion. And if you start with the assumption that fetuses are not persons, finding abortion bans unconstitutional is more or less compelled from the early 20th century understanding of SDP, possibly even when viewed through the lens of Carolene Products footnote 4.
June 18, 2010, 9:59 pmJoe says:
that the state has a legitimate interest in protecting the unborn, presumably because they are “persons” or quasi-persons under the Constitution.
is this the argument for not torturing animals? I personally think it is in some fashion — we thinks cats, for instance, have some moral value that reach “quasi-person” status, but I’m not sure what you think.
Various other arguments are supplied, such that disrespecting human life (not personhood necessarily) will cause various societal problems. The same applies to harm to animals.
June 19, 2010, 10:30 amChrisTS says:
Not really. But if more men rode bareback, the rate of pregnancies would be affected.
June 19, 2010, 2:37 pmDilan Esper says:
Chris:
The unplanned pregnancy and abortion rates are somewhat related.
June 19, 2010, 4:48 pmChrisTS says:
Well, granted. However, an ounce of prevention is worth a poound of cure. :-)
June 19, 2010, 5:51 pmChrisTS says:
‘pound’
June 19, 2010, 6:11 pmMichael Ejercito says:
A brain dead person is dead if the rest of the body will die as a result of brain death.
June 20, 2010, 1:33 pmGuy says:
I think that’s why in rem actions don’t have to accord Due Process, but those cowards on the Supreme Court have backed away from that categorical rule, just because it doesn’t make any sense.
June 20, 2010, 5:04 pmjpsartrean says:
>>there is huge cultural reliance (as sexual mores have changed in part to reflect the availability of abortion)<<
"Huge" cultural reliance even though these mores have changed only "in part"?!? This comment seems a bit disingenuous to me.
Regardless, when it comes to a right of "privacy" and/or "fundamental" rights, its not as if the court really applies any cohesive/consistent rationale(s).
How about the "deeply rooted in history and tradition" gambit? Or, better yet, the "ordered liberty" rouse?
August 20, 2010, 10:26 pm