13 ms·

Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just st

Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just struck down is necessary". Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way. But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value. Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.

ceejayoz 4y ago
> But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
- zeroonetwothree 4y ago
  As well as the “privileges and immunities” clause. The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
- CWuestefeld 4y ago
  There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else. You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
  - ceejayoz 4y ago
    It is explicit in the Constitution that people have rights not listed in it. Those unenumerated rights are, by their nature, not listed, but I find it hard to credit the idea that Americans don't have a right to privacy. > You also ignored my example of 2A Sure, because everyone does. The number of people arguing bans on personal ownership of nuclear arms are unconstitutional is... small. Even originalist/textualists seem to agree it's by no means absolute.
    - CWuestefeld 4y ago
      > > You also ignored my example of 2A > Sure, because everyone does. I don't think this is a winning argument. The fact that one argument - and one thought important enough to enumerate actually explicitly - is frequently ignored doesn't support the idea that another unenumerated one exists, and quite possibly the opposite. More specifically, most Roe supporters have been ignoring the "bodily autonomy" philosophy all along, and more recently even going directly against it. It would seem that it's no more absolute than you believe 2A to be. As I wrote elsewhere in this thread: 1. Have you taken to the streets protesting when people, even after consulting with their doctor, have been forbidden the right to use marijuana medicinally? 2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough? 3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations? If you answer "no" to any of the above, then I assert that your claims to believe in the "bodily autonomy" argument behind Roe is false.
zionic 4y ago
This is a wonderful post and I hope it gets more visibility. Really nailed it here.
jayd16 4y ago
How can you think it's not blatant politics when they lied about their opinions in congressional hearings only to overturn Roe once they had power. How can you think that is in good faith? To argue, "oh whoops you didn't _do the work_ to obtain your RIGHTS" is also simply a distraction. The US is founded on the concept of unenumerated rights. Do not be fooled. We had those rights and now we don't thanks to this new court.
- CWuestefeld 4y ago
  Look at it the other way around: if the nominees are being questioned about what their opinions are on specific issues, the Congress has already turned it into a political match. The Congress ought to be trying to probe for their qualifications as a justice, and I don't think that one's opinion on self defense or abortion figure directly into that. Further, I don't buy that you truly believed the argument behind Roe anyway. I don't know you personally, but it's a good bet that you don't support the philosophy that it described. What Roe said[1] was that a person can make whatever[2] treatment they individual decide (in consultation with their doctor) is most appropriate for their circumstances. But I'm betting that you don't actually agree with this, as evidenced that you likely haven't pursued other violations of it with such vehemence. So I ask you: 1. Have you taken to the streets protesting when people, after consulting with their doctor, have been forbidden the right to use marijuana medicinally? 2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough? 3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations? If you answer "no" to any of the above, then I assert that your claims to believe in the argument behind Roe is false. [1] Believe it or not, I actually support the philosophy of bodily autonomy. But that doesn't change the fact that the actual argument behind Roe was a notably lousy one. This is precisely the point I was trying to make in my original comment: one's opinions about the goodness of something are independent of their judgment about the legality of legislation under the Constitution. [2] Actually, Roe's text limits itself to just abortions, but it seems clear that such a principle ought to apply to all medical treatments in principle - that's why many of today's protests are framed more broadly as "bodily autonomy".
shrimpx 4y ago
That works in principle but not in practice. The core issue in roe v wade was tossing out precedent while failing to show reasoning why tossing out precedent should be ok. So now the court seems to be chaotic. Whatever the makeup of the court, they may toss out precedent that doesn’t match the current majority’s interpretation of the constitution (of which there are many). Then suppose the scotus becomes a liberal majority. Then they may reinstate all the tossed out precedents. That’s just chaos, with the main focus becoming which party chooses justices, not any reasonable continuity and coherence of constitutional law.
- CWuestefeld 4y ago
  I agree with your concerns about thrashing. I think that the fact that justices aren't elected politically, together with their typical lengthy tenure, is intended to buffer against that. But as politics becomes more polarized, perhaps the buffer doesn't serve as well anymore.
  - shrimpx 4y ago
    A core problem IMO is that justices are appointed politically. There's an assumption that politicians and their parties will appoint unbiased justices, presumably out of the goodness of their heart and respect for norms... That assumption looks laughably flawed today.
    - CWuestefeld 4y ago
      Agreed. Elsewhere in this thread someone pointed out that some recent justices may have been... less than truthful... in answers to the Senate during their nomination hearings, at least giving the impression that they'd continue to support Roe. My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
vdnkh 4y ago
You're ignoring the fact that there are several philosophies behind constitutional interpretation, and that the dominant philosophy which you list here ("sole job is to interpret laws through the lens of the Constitution"), also called Originalism, is a recent creation by Scalia.

ceejayoz 4y ago

> But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.

zeroonetwothree 4y ago
As well as the “privileges and immunities” clause. The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
CWuestefeld 4y ago
There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else. You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
- ceejayoz 4y ago
  It is explicit in the Constitution that people have rights not listed in it. Those unenumerated rights are, by their nature, not listed, but I find it hard to credit the idea that Americans don't have a right to privacy. > You also ignored my example of 2A Sure, because everyone does. The number of people arguing bans on personal ownership of nuclear arms are unconstitutional is... small. Even originalist/textualists seem to agree it's by no means absolute.
  - CWuestefeld 4y ago
    > > You also ignored my example of 2A > Sure, because everyone does. I don't think this is a winning argument. The fact that one argument - and one thought important enough to enumerate actually explicitly - is frequently ignored doesn't support the idea that another unenumerated one exists, and quite possibly the opposite. More specifically, most Roe supporters have been ignoring the "bodily autonomy" philosophy all along, and more recently even going directly against it. It would seem that it's no more absolute than you believe 2A to be. As I wrote elsewhere in this thread: 1. Have you taken to the streets protesting when people, even after consulting with their doctor, have been forbidden the right to use marijuana medicinally? 2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough? 3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations? If you answer "no" to any of the above, then I assert that your claims to believe in the "bodily autonomy" argument behind Roe is false.

zionic 4y ago

This is a wonderful post and I hope it gets more visibility. Really nailed it here.

jayd16 4y ago

How can you think it's not blatant politics when they lied about their opinions in congressional hearings only to overturn Roe once they had power. How can you think that is in good faith? To argue, "oh whoops you didn't _do the work_ to obtain your RIGHTS" is also simply a distraction. The US is founded on the concept of unenumerated rights. Do not be fooled. We had those rights and now we don't thanks to this new court.

CWuestefeld 4y ago
Look at it the other way around: if the nominees are being questioned about what their opinions are on specific issues, the Congress has already turned it into a political match. The Congress ought to be trying to probe for their qualifications as a justice, and I don't think that one's opinion on self defense or abortion figure directly into that. Further, I don't buy that you truly believed the argument behind Roe anyway. I don't know you personally, but it's a good bet that you don't support the philosophy that it described. What Roe said[1] was that a person can make whatever[2] treatment they individual decide (in consultation with their doctor) is most appropriate for their circumstances. But I'm betting that you don't actually agree with this, as evidenced that you likely haven't pursued other violations of it with such vehemence. So I ask you: 1. Have you taken to the streets protesting when people, after consulting with their doctor, have been forbidden the right to use marijuana medicinally? 2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough? 3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations? If you answer "no" to any of the above, then I assert that your claims to believe in the argument behind Roe is false. [1] Believe it or not, I actually support the philosophy of bodily autonomy. But that doesn't change the fact that the actual argument behind Roe was a notably lousy one. This is precisely the point I was trying to make in my original comment: one's opinions about the goodness of something are independent of their judgment about the legality of legislation under the Constitution. [2] Actually, Roe's text limits itself to just abortions, but it seems clear that such a principle ought to apply to all medical treatments in principle - that's why many of today's protests are framed more broadly as "bodily autonomy".

shrimpx 4y ago

That works in principle but not in practice. The core issue in roe v wade was tossing out precedent while failing to show reasoning why tossing out precedent should be ok. So now the court seems to be chaotic. Whatever the makeup of the court, they may toss out precedent that doesn’t match the current majority’s interpretation of the constitution (of which there are many). Then suppose the scotus becomes a liberal majority. Then they may reinstate all the tossed out precedents. That’s just chaos, with the main focus becoming which party chooses justices, not any reasonable continuity and coherence of constitutional law.

CWuestefeld 4y ago
I agree with your concerns about thrashing. I think that the fact that justices aren't elected politically, together with their typical lengthy tenure, is intended to buffer against that. But as politics becomes more polarized, perhaps the buffer doesn't serve as well anymore.
- shrimpx 4y ago
  A core problem IMO is that justices are appointed politically. There's an assumption that politicians and their parties will appoint unbiased justices, presumably out of the goodness of their heart and respect for norms... That assumption looks laughably flawed today.
  - CWuestefeld 4y ago
    Agreed. Elsewhere in this thread someone pointed out that some recent justices may have been... less than truthful... in answers to the Senate during their nomination hearings, at least giving the impression that they'd continue to support Roe. My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.

vdnkh 4y ago

You're ignoring the fact that there are several philosophies behind constitutional interpretation, and that the dominant philosophy which you list here ("sole job is to interpret laws through the lens of the Constitution"), also called Originalism, is a recent creation by Scalia.