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> Yes, and this is fundamentally wrong approach to issues on which there is no broad public agreement. Two important things here: 1. The judiciary exists to p

> Yes, and this is fundamentally wrong approach to issues on which there is no broad public agreement. Two important things here: 1. The judiciary exists to protect the rights of the people protected by the constitution, even when there may not be broad public support for those rights, even when those rights are unpopular. That's what happened with Brown v. BoE 2. 61% of Americans think that abortion should be legal in all or most cases. That is, 39% think it should be illegal. To compare, 49% think that burning the American Flag should be illegal, which the court has had no problem defending, and no one seems to consider was wrong for the court to decide. > So would moving to, say, Canada or Sweden, which hardly makes it sound like a disaster. Huh? (https://en.wikipedia.org/wiki/R_v_Morgentaler https://en.wikipedia.org/wiki/R_v_Morgentaler)

xyzzyz 6y ago
> 1. The judiciary exists to protect the rights of the people protected by the constitution, even when there may not be broad public support for those rights, even when those rights are unpopular. That's what happened with Brown v. BoE That's correct, but I think the legal argument from Equal Protection Clause in Brown v. Board of Education is rather straightforward, compared to "emanations of penumbras" that form the constitutional basis for Roe v. Wade. As much as I support right to contraceptives, and right to abortion, I believe that the Supreme Court arguments for constitutional basis of these are, to put it bluntly, full of shit. > 2. 61% of Americans think that abortion should be legal in all or most cases. That is, 39% think it should be illegal. To compare, 49% think that burning the American Flag should be illegal, which the court has had no problem defending, and no one seems to consider was wrong for the court to decide. That's a very good point. I think if you ask American public whether they support constitutional right to free speech, overwhelming majority will be for it. I think the contradiction stems from the fact that their moral responses are rather automatic, and not based on careful moral reasoning. When you actually connect flag burning to free speech in their minds, I suspect that the support for making flag burning a crime will fall. I think it's much easier to make such connection than to argue that such right stems from the right to privacy, which in turn stems from the right to due process. I don't like the methods, even if the outcome is to my liking. The same motivated arguments could be used to argue anything the judges want, and one day the judges will decide something I do not like using the same motivated arguments. For example, it was ruled that right to privacy prevents banning contraceptive drugs. However, recreational psychoactive drugs are banned just fine, and there are hardly any voices arguing unconstitutionality of the practice. Why is it? Clearly, the answer cannot be based on the differences enumerated in the text of clause in the constitution defining right to privacy, because there simply is no such text: it's all emanated penumbras. I think the answer is rather very simple: the judges preferred one outcome in contraceptive case, and opposite outcome in the other case. This ain't so bad, but if we just decide cases based on the outcome judges want, why we even have the law and the constitution in the first place? What's the point? The real reason for concern of liberal Americans with respect to Roe v. Wade, and in general with respect to Trump appointments of judges to the Supreme Court, is that it is tacitly recognized that the US Constitution is dead, is just words on the old parchment, and it's the judges personal opinion that's the actual defining law of the country. This arrangement worked just fine for as long as the Supreme Court made decisions to the liking of liberal Americans, but as that era is coming to the end, they see that there's nothing to protect them anymore now that the Constitution has been killed. > Huh? (https://en.wikipedia.org/wiki/R_v_Morgentaler https://en.wikipedia.org/wiki/R_v_Morgentaler) Oh, I'm sorry, I incorrectly assumed that Canada's abortion laws are similar to those in the rest of the western world, however they seem to be sitting in rather exceptional bucket alongside US.
rayiner 6y ago
As to your first point: you’re begging the question by presupposing that there is a “right” to kill and extract a fetus under various circumstances. Where does that right originate, and who gets to decide what those circumstances are? Liberals tend to believe that the constitution is a living document and can protect rights even when those rights didn’t exist at the time of the founding. Even if you accept that, you’re only halfway there. The right must still come from somewhere. Where does the right to an abortion, as defined by Roe—which conceives of a right to an abortion all the way to the point of viability—come from? If you can’t find it in the text of the Constitution, and you can’t find it in the history books of what rights the framers thoughts were fundamental, it has to derive from broad public recognition, correct? Going to your second point—the right protected by Roe is very different than the version of abortion that has broad public support. Roe invalidates any law that bans abortion generally before viability (22-24 weeks), even if the law has exceptions for health of mother, etc. That, however, is a much broader right than either Americans or most people in the rest of the developed world support. Support for “generally legal” abortion falls off a cliff after the first trimester: https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx https://news.gallup.com/poll/235469/trimesters-key-abortion-.... Just 28% of people think abortion should be “generally legal” in the second trimester. There is a biological basis for why any parent who has had a 12-week anatomy scan might think that should be an upper limit on elective abortion: https://www.parents.com/pregnancy/week-by-week/12/your-growing-baby-week-12 https://www.parents.com/pregnancy/week-by-week/12/your-growi.... Not surprisingly, in Europe, 10-14 weeks is a very common time limit for elective abortions. Under Roe, the abortion laws of France and Denmark would be unconstitutional. This is not a theoretical issue: 1 in 10 US abortions happen after 13 weeks, and birth defects are not common enough to explain most of them. So where does Roe come from, even within a liberal theory of what’s protected by the constitution?
- joshuamorton 6y ago
  > As to your first point: you’re begging the question by presupposing that there is a “right” to kill and extract a fetus under various circumstances. And you're presupposing that a nonviable fetus is alive. As I understand it, the conservative view is that rights are not granted by the government, they are only restricted, hence the 10th amendment. The right to freedom of movement is not granted to me by anyone, yet I have it because it is not explicitly restricted. The constitution puts guardrails on when, and how, the government is allowed to restrict my rights. > Liberals tend to believe that the constitution is a living document and can protect rights even when those rights didn’t exist at the time of the founding. This depends on right in question. For example the right to donate to political candidates is not explicitly enumerated in the constitution (and is heavily restricted in many other nations), but is seen as protected via a combination of rights enumerated in the 1st amendment. > If you can’t find it in the text of the Constitution, and you can’t find it in the history books of what rights the framers thoughts were fundamental, it has to derive from broad public recognition, correct? No, I refer you again to Brown v. BoE. There was at the time no broad public recognition that Separate but Equal wasn't constitutional, and the people who wrote the amendment certainly felt segregation was A-OK. > Where does the right to an abortion, as defined by Roe As I understand, in this case the Justices found that an individual's right to privacy prevented the government from meddling with the medical procedures that person chose to get, without. But then you knew that already. It appears that you disagree with this, even though 15 (and a half) Supreme court justices have found that the text of the constitution supports this protection. (notably compared to 8, likely soon 9, who did not)

xyzzyz 6y ago

> 1. The judiciary exists to protect the rights of the people protected by the constitution, even when there may not be broad public support for those rights, even when those rights are unpopular. That's what happened with Brown v. BoE That's correct, but I think the legal argument from Equal Protection Clause in Brown v. Board of Education is rather straightforward, compared to "emanations of penumbras" that form the constitutional basis for Roe v. Wade. As much as I support right to contraceptives, and right to abortion, I believe that the Supreme Court arguments for constitutional basis of these are, to put it bluntly, full of shit. > 2. 61% of Americans think that abortion should be legal in all or most cases. That is, 39% think it should be illegal. To compare, 49% think that burning the American Flag should be illegal, which the court has had no problem defending, and no one seems to consider was wrong for the court to decide. That's a very good point. I think if you ask American public whether they support constitutional right to free speech, overwhelming majority will be for it. I think the contradiction stems from the fact that their moral responses are rather automatic, and not based on careful moral reasoning. When you actually connect flag burning to free speech in their minds, I suspect that the support for making flag burning a crime will fall. I think it's much easier to make such connection than to argue that such right stems from the right to privacy, which in turn stems from the right to due process. I don't like the methods, even if the outcome is to my liking. The same motivated arguments could be used to argue anything the judges want, and one day the judges will decide something I do not like using the same motivated arguments. For example, it was ruled that right to privacy prevents banning contraceptive drugs. However, recreational psychoactive drugs are banned just fine, and there are hardly any voices arguing unconstitutionality of the practice. Why is it? Clearly, the answer cannot be based on the differences enumerated in the text of clause in the constitution defining right to privacy, because there simply is no such text: it's all emanated penumbras. I think the answer is rather very simple: the judges preferred one outcome in contraceptive case, and opposite outcome in the other case. This ain't so bad, but if we just decide cases based on the outcome judges want, why we even have the law and the constitution in the first place? What's the point? The real reason for concern of liberal Americans with respect to Roe v. Wade, and in general with respect to Trump appointments of judges to the Supreme Court, is that it is tacitly recognized that the US Constitution is dead, is just words on the old parchment, and it's the judges personal opinion that's the actual defining law of the country. This arrangement worked just fine for as long as the Supreme Court made decisions to the liking of liberal Americans, but as that era is coming to the end, they see that there's nothing to protect them anymore now that the Constitution has been killed. > Huh? (https://en.wikipedia.org/wiki/R_v_Morgentaler https://en.wikipedia.org/wiki/R_v_Morgentaler) Oh, I'm sorry, I incorrectly assumed that Canada's abortion laws are similar to those in the rest of the western world, however they seem to be sitting in rather exceptional bucket alongside US.

rayiner 6y ago

As to your first point: you’re begging the question by presupposing that there is a “right” to kill and extract a fetus under various circumstances. Where does that right originate, and who gets to decide what those circumstances are? Liberals tend to believe that the constitution is a living document and can protect rights even when those rights didn’t exist at the time of the founding. Even if you accept that, you’re only halfway there. The right must still come from somewhere. Where does the right to an abortion, as defined by Roe—which conceives of a right to an abortion all the way to the point of viability—come from? If you can’t find it in the text of the Constitution, and you can’t find it in the history books of what rights the framers thoughts were fundamental, it has to derive from broad public recognition, correct? Going to your second point—the right protected by Roe is very different than the version of abortion that has broad public support. Roe invalidates any law that bans abortion generally before viability (22-24 weeks), even if the law has exceptions for health of mother, etc. That, however, is a much broader right than either Americans or most people in the rest of the developed world support. Support for “generally legal” abortion falls off a cliff after the first trimester: https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx https://news.gallup.com/poll/235469/trimesters-key-abortion-.... Just 28% of people think abortion should be “generally legal” in the second trimester. There is a biological basis for why any parent who has had a 12-week anatomy scan might think that should be an upper limit on elective abortion: https://www.parents.com/pregnancy/week-by-week/12/your-growing-baby-week-12 https://www.parents.com/pregnancy/week-by-week/12/your-growi.... Not surprisingly, in Europe, 10-14 weeks is a very common time limit for elective abortions. Under Roe, the abortion laws of France and Denmark would be unconstitutional. This is not a theoretical issue: 1 in 10 US abortions happen after 13 weeks, and birth defects are not common enough to explain most of them. So where does Roe come from, even within a liberal theory of what’s protected by the constitution?

joshuamorton 6y ago
> As to your first point: you’re begging the question by presupposing that there is a “right” to kill and extract a fetus under various circumstances. And you're presupposing that a nonviable fetus is alive. As I understand it, the conservative view is that rights are not granted by the government, they are only restricted, hence the 10th amendment. The right to freedom of movement is not granted to me by anyone, yet I have it because it is not explicitly restricted. The constitution puts guardrails on when, and how, the government is allowed to restrict my rights. > Liberals tend to believe that the constitution is a living document and can protect rights even when those rights didn’t exist at the time of the founding. This depends on right in question. For example the right to donate to political candidates is not explicitly enumerated in the constitution (and is heavily restricted in many other nations), but is seen as protected via a combination of rights enumerated in the 1st amendment. > If you can’t find it in the text of the Constitution, and you can’t find it in the history books of what rights the framers thoughts were fundamental, it has to derive from broad public recognition, correct? No, I refer you again to Brown v. BoE. There was at the time no broad public recognition that Separate but Equal wasn't constitutional, and the people who wrote the amendment certainly felt segregation was A-OK. > Where does the right to an abortion, as defined by Roe As I understand, in this case the Justices found that an individual's right to privacy prevented the government from meddling with the medical procedures that person chose to get, without. But then you knew that already. It appears that you disagree with this, even though 15 (and a half) Supreme court justices have found that the text of the constitution supports this protection. (notably compared to 8, likely soon 9, who did not)