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Mo' Roe
Will Baude, possessed of some actual knowledge of legal doctrine, has further thoughts on the issue.November 16, 2004 | Permalink
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The most telling remark in this article is the following:
"Note that it's possible that the elimination of Roe would push constitutional discourse rightward, making acceptable eliminations that Thomas and Scalia currently don't champion"
That's exactly what will happen and right-wing lawyers will make damn sure that cases are put before the Court which will push the Right's radical judicial agenda.
Posted by: Jay Bradfield | Nov 16, 2004 5:54:50 PM
Of course, saving the lifes of thousands of women who could die at the hands of illegal abortionists isn't considered compelling....
MKK
Posted by: Mary Kay | Nov 16, 2004 6:43:59 PM
Hey Thomas & Scalia ain't so bad after all! I feel so much better now.
Posted by: bob mcmanus | Nov 16, 2004 7:28:18 PM
"...it's possible that the elimination of Roe would push constitutional discourse rightward ..."
Possible?? ... seems to me the elimination of Roe would itself just *be* a pushing rightward of constitutional discourse, for all practical purposes.
Another question, just for clarification: Are Baude's "unenumerated rights" the same thing as what are sometimes called "penumbral rights," or is there some difference between these?
Posted by: jmb | Nov 16, 2004 7:56:18 PM
Justice Scalia spoke today at the University of Michigan Law School, and he specifically mentioned his feelings about Roe--a fetus is NOT a person.
He was explaining his originalist philosophy (for him, the paramount concern is the plain text of the Constitution & the meaning it had at the time it was adopted). Since the 14th Amendment repeatedly mentions Persons--and he said he does not believe a fetus is a person, nor did people in the 1860s--and because the constitution, in dividing electoral votes/House for states based on population, references "persons" & that we have never counted pregnant women as 2 persons, that clearly a fetus was not considered a person in any original understanding.
Clearly, he said he would reverse Roe, as he believes the Constitution is silent as to abortion, but he would NOT declare a fetus a person & make the very practice unconstitutional.
Posted by: J | Nov 16, 2004 8:13:46 PM
So, of course, in case the point of my comment is not clear, the point is that Justice Scalia seemed very strongly to indicate today that he would simply overturn the holding that women have a constitutional right to an abortion--the Constitution says nothing about it.
A state legislature (or Congress) could pass a law that permits (or prohibits) women to have abortions, and that would be that. Abortions in Blue states, no abortions in Red states (unless the GOP Congress gets together & passes a federal anti-abortion statute, in which case we'd [hopefully] see the GOP majorities in the House & Senate vanish in 2006).
Posted by: J | Nov 16, 2004 8:19:45 PM
The Roe Vs. Wade decision is blatantly Unconstitutional as it violates the Tenth Amendment of the Bill of Rights. Murder is a crime because God says so.
Posted by: Modern Crusader | Nov 16, 2004 8:49:23 PM
MC-
Great legal analysis.
J-
Scalia must believe the second amendment only guarantees the right to own mussle-loading muskets! Afterall, they were the most advanced firearm in 1790.
Posted by: heh | Nov 16, 2004 8:57:36 PM
As Robert Bork says, the invention of technology does not alter the Constitution. The Fourth Amendment privacy right still apllies to everyone even though high tech equipment can see through walls. In the same way, the Second Amendment protect our right to bear assault rifles.
Posted by: Modern Crusader | Nov 16, 2004 9:07:56 PM
"but he would NOT declare a fetus a person & make the very practice unconstitutional."
The logic is fairly plain then. If the foetus is not a person and has no Constitutional Rights, then it is part of the woman's body. If Scalia says states may ban abortion on a local level, then he also probably believes states can criminalize tattooing, haircuts, plastic surgery, and eye makeup.
Posted by: bob mcmanus | Nov 16, 2004 9:43:50 PM
MC-
So you believe that right to privacy is part of the constitution. Glad so see you favor one of the major premises behind roe! couple that with what Scalia said above and you've got the entire Blackmun opinion!!!
Posted by: heh | Nov 16, 2004 9:46:49 PM
If Scalia says states may ban abortion on a local level, then he also probably believes states can criminalize tattooing, haircuts, plastic surgery, and eye makeup.
Well, strictly speaking, they can. It would just be bad policy.
And it's not like a fetus can't be some third variant of lifeform.
Posted by: JP | Nov 16, 2004 11:48:36 PM
States do criminalize tatooing, at least in some instances. Although Scalia and Thomas are not in complete alignment, or even the most aligned on this court (it is a common idiocy to desribe them as such), they do both seem to agree that there is all manner of stupid or bad things legislatures can do that aren't unconstitutional. I wonder, however, what Scalia's opinion is of national government passing a law against aborion, despite it not having the enumerated power to do so.
Posted by: Will Allen | Nov 17, 2004 1:56:51 AM
"MC-So you believe that right to privacy is part of the constitution."
No. Unless you're talking about the Fourth Amendment there is no right to privacy. Certainly there is no right to murder. Where are you getting that from? Do you have reading comprehension problems?
Posted by: Modern Crusader | Nov 17, 2004 6:26:21 AM
Tattooing was banned in Massachusetts until fairly recently (the ACLU didn't like it at all). So, I guess, banning, say, appendectomy is not out of the question either; it's a great country where almost anything is possible.
Posted by: abb1 | Nov 17, 2004 7:25:32 AM
I tend to buy the notion that Scalia would want, simply, to send abortion to the states to decide. Unfortunately that sets up the circumstances that brought Roe and several other cases to the court to begin with - questions about whether women can be arrested for crossing state lines to get abortions, questions about access to safe medical care and others. Probably most to the point is that states don't necessarily want to open this can of worms, and a case can be made - and, well, it was, in Roe - that women should be able, in general principle, to seek medical care without fear of the law. If this isn't about the fetus being a person, I've said it before and I'll say it again, I'm not sure how the court can say explicitly that women don't have a right to consult privately with a doctor. That's just odd.
Posted by: weboy | Nov 17, 2004 8:10:57 AM
MC (Yigal Amir)-
There's nothing in the fourth amendment about a right to privacy, dumbass. Are there rules regarding search and seizure? yes.
Posted by: heh | Nov 17, 2004 9:31:02 AM
Why do people who support the Court intervening whenever legislatures do something bad or stupid cling to the notion that the Court isn't equally prone to doing something bad or stupid? Why the assumption that 5 people with lifetime appointments aren't as likely to be as dumb or mendacious as a majority of legislators? True, the lifetime appointment provides insulation against idiocy or mendacity driven by popular will, but popular will is far from the only source of those two qualities. Better for the Court defer to legislatures, except when those bodies have exceeded their clearly defined powers, as opposed to Courts striking down any law which is stupid or unjust; there is a much easier mechanism for getting rid of stupid legislators.
Posted by: Will Allen | Nov 17, 2004 10:05:28 AM
An odd consequence of the idea that the Constitution is simply "silent" on the question of abortion is that nothing in the Constitution would prohibit a state making abortion compulsory.
Posted by: C.J.Colucci | Nov 17, 2004 11:33:35 AM
Will Allen:
Why do people who support the Court intervening whenever legislatures do something bad or stupid cling to the notion that the Court isn't equally prone to doing something bad or stupid? Why the assumption that 5 people with lifetime appointments aren't as likely to be as dumb or mendacious as a majority of legislators?
There is no such assumption. We don't have an independent judicial branch because we think judges are necessarily wiser than legislators. We have an independent judicial branch to act as a check on the power of legislators.
Better for the Court defer to legislatures, except when those bodies have exceeded their clearly defined powers,
No kidding. And a ban on abortion is an example of legislatures exceeding their clearly defined powers.
Posted by: Don P | Nov 17, 2004 11:55:22 AM
Don, it is useless to engage in dialogue with you regarding this matter, for you are entirely ignorant regarding the Constitution. Need we revisit examples of your ignorance? I'll simply note that the Supreme Court is perhaps two nominations away from deciding that legislatures can ban abortions without exceeding their power, which will then render your reasoning null and void. As a practical matter, what is "constitutional", or what exceeds clearly defined power, is entirely and only a function of who can cobble together five votes. Thus, I would prefer that people who are extremely difficult to remove from power to be very deferential to those who are much easier to remove from power, particularly at the state level. Voting with one's feet provides an excellent way for people find compromise on issues which do not lend themselves to empirical proof, such as at what point a fetus achieves the status of a human being deserving of state protection.
Posted by: Will Allen | Nov 17, 2004 12:42:09 PM
An odd consequence of the idea that the Constitution is simply "silent" on the question of abortion is that nothing in the Constitution would prohibit a state making abortion compulsory.
Cute, but not actually true. Go read my post.
Posted by: Will Baude | Nov 17, 2004 1:17:24 PM
Will Allen:
Don, it is useless to engage in dialogue with you regarding this matter, for you are entirely ignorant regarding the Constitution.
Ah, yes. The inevitable Will Allen ad hominem. Right back at ya: you're a moron.
I'll simply note that the Supreme Court is perhaps two nominations away from deciding that legislatures can ban abortions without exceeding their power, which will then render your reasoning null and void.
No it won't. The fact that the Supreme Court sometimes decides cases incorrectly is utterly irrelevant to my reasoning.
As a practical matter, what is "constitutional", or what exceeds clearly defined power, is entirely and only a function of who can cobble together five votes. Thus, I would prefer that people who are extremely difficult to remove from power to be very deferential to those who are much easier to remove from power, particularly at the state level.
Another stupid argument. The whole point of making Supreme Court justices difficult to remove from power is to limit their vulnerability to the political pressures that influence the decisions of popularly-elected legislators. The system was deliberately designed that way. If you want to live in a country governed by simple majoritarianism, with its attendant "tyranny of the majority," you are free to lobby to amend the Constitution.
Voting with one's feet provides an excellent way for people find compromise on issues which do not lend themselves to empirical proof, such as at what point a fetus achieves the status of a human being deserving of state protection.
Yet another utterly dumb argument. Since no right is subject to empirical proof, you're arguing that all rights should be decided by "voting with one's feet," i.e., ordinary democratic processes. Again, the United States is a constitutional republic. It's not a pure democracy. It was intentionally designed, for good reasons, not to be a pure democracy. You obviously think this is a bad idea.
Posted by: Don P | Nov 17, 2004 1:28:23 PM
Completely agree with Will Allen (except where he's insulting another commenter). The people should decide this one. Once a Republican legislature (federal or state) starts banning abortions, you'll see how tectonic plates shift and bury them. And if they don't - they'll lose their wingnut vote. Reversing RvW is a win-win.
Posted by: abb1 | Nov 17, 2004 1:31:28 PM
Will Baude:
I've read your post and don't see an explanation for your "not actually true" claim above. If the Constitution really were silent on abortion, if it said nothing whatsoever about abortion, how could it prohibit a state from making abortion compulsory?
Posted by: Don P | Nov 17, 2004 1:31:48 PM
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