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> And it's worth noting that rights not explicitly enumerated in the constitution are still rights protected by the constitution. The current SC just disagrees

> And it's worth noting that rights not explicitly enumerated in the constitution are still rights protected by the constitution. The current SC just disagrees with the previous SC's decision on what those un-enumerated rights are. I think your phrasing there is awkward. Which rights? All imaginable ones? (you probably should have said "some rights" to block this inprepretation) Rights with specific kinds of historical precedence? Novel rights "our" faction wishes were there and that "our" judges can read into it through deliberate effort? Reading novel rights into the constitution is the kind of backdoor amendment I was referring to. > All that was being contested was a state's ability to limit abortions beyond the first trimester (something commonly allowed as part of the "balance" between states rights and women's rights built upon RvW). No, I don't think that's actually what happened. IIRC, it could have chosen to resolve it that way, but the parties turned the case into a challenge about Roe v. Wade itself in their arguments, which gave an opening for a broader ruling.

falcolas 4y ago
FWIW, my wording is based on the constitution. specifically, Amendment 9, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So what rights are those? That's up to the courts and lawmakers to decide. And they have. Folks disagree with the choices they made and the justifications they gave. For example, I disagree that a right which has been in place for 50 years, with millions of women exercising that right yearly, is somehow not part of the US' social and moral fabric. But since the founders didn't do it (debatable, there were laws allowing abortions on the books at the founding of the US), it's OK to take that right away. > the parties actually turned into into a challenge about Roe v. Wade itself The SCOTUS did that. As noted in Roberts' concurring opinion (which was still one of the 4 votes against), this specific case could have been solved without tearing down the RvW ruling. "... the State never argued that we should grant review for that purpose [overturning RvW]." "The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case."
- tablespoon 4y ago
  > "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." > So what rights are those? That's up to the courts and lawmakers to decide. And they have. Folks disagree with the choices they made and the justifications they gave. I'm not a lawyer, but the word "retained" seems pretty significant there. You can't retain something you don't have. I wouldn't be surprised if that was meant not as some kind of mechanism for adding new rights in the future, but as clarification to not remove rights that were understood at the time but not listed (e.g. for reasons of economy or forgetfulness). Also, IIRC, Roe v. Wade did not appeal to the Ninth Amendment, so bringing it up is a bit of a red herring. > For example, I disagree that a right which has been in place for 50 years, with millions of women exercising that right yearly, is somehow not part of the US' social and moral fabric. I was talking about it being an de-facto amendment relative to the situation when it was passed in 1973. >>> EDIT: Side note - the court wasn't even being asked to overturn Roe v Wade - they took that upon themselves. All that was being contested was a state's ability to limit abortions beyond the first trimester (something commonly allowed as part of the "balance" between states rights and women's rights built upon RvW). >> IIRC, it could have chosen to resolve it that way, but the parties turned the case into a challenge about Roe v. Wade itself in their arguments, which gave an opening for a broader ruling. > The SCOTUS did that. As noted in Roberts' concurring opinion (which was still one of the 4 votes against), this specific case could have been solved without tearing down the RvW ruling. The parties opened the door: https://www.nytimes.com/live/2021/12/01/us/abortion-mississippi-supreme-court https://www.nytimes.com/live/2021/12/01/us/abortion-mississi...: > In the [Mississippi’s] petition seeking Supreme Court review, officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though lawyers for the state did raise the possibility in a footnote. Once the court agreed to hear the case, the state shifted its emphasis and began a sustained assault on those precedents. It's true the court could have rejected that and went narrower (Robert's preference), but it appears to not be true that "the court wasn't even being asked to overturn Roe v Wade" -- it was during oral arguments.
  - falcolas 4y ago
    > You can't retain something you don't have. One SCOTUS said you do have it. One says you don't. Who's right? Not that it matters. Like I said, it's on Congress now. > footnote And the decision was still with the SCOTUS, footnote or no footnote. Regardless of what the lawyers say, it's ultimately up to the judges to determine what's an appropriate response to their arguments. If every footnote begging for an overturning of precedent was taken to this extreme, we would see a lot more turnover. This sweeping and disruptive change is solely on the SCOTUS' heads.

falcolas 4y ago

FWIW, my wording is based on the constitution. specifically, Amendment 9, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So what rights are those? That's up to the courts and lawmakers to decide. And they have. Folks disagree with the choices they made and the justifications they gave. For example, I disagree that a right which has been in place for 50 years, with millions of women exercising that right yearly, is somehow not part of the US' social and moral fabric. But since the founders didn't do it (debatable, there were laws allowing abortions on the books at the founding of the US), it's OK to take that right away. > the parties actually turned into into a challenge about Roe v. Wade itself The SCOTUS did that. As noted in Roberts' concurring opinion (which was still one of the 4 votes against), this specific case could have been solved without tearing down the RvW ruling. "... the State never argued that we should grant review for that purpose [overturning RvW]." "The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case."

tablespoon 4y ago
> "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." > So what rights are those? That's up to the courts and lawmakers to decide. And they have. Folks disagree with the choices they made and the justifications they gave. I'm not a lawyer, but the word "retained" seems pretty significant there. You can't retain something you don't have. I wouldn't be surprised if that was meant not as some kind of mechanism for adding new rights in the future, but as clarification to not remove rights that were understood at the time but not listed (e.g. for reasons of economy or forgetfulness). Also, IIRC, Roe v. Wade did not appeal to the Ninth Amendment, so bringing it up is a bit of a red herring. > For example, I disagree that a right which has been in place for 50 years, with millions of women exercising that right yearly, is somehow not part of the US' social and moral fabric. I was talking about it being an de-facto amendment relative to the situation when it was passed in 1973. >>> EDIT: Side note - the court wasn't even being asked to overturn Roe v Wade - they took that upon themselves. All that was being contested was a state's ability to limit abortions beyond the first trimester (something commonly allowed as part of the "balance" between states rights and women's rights built upon RvW). >> IIRC, it could have chosen to resolve it that way, but the parties turned the case into a challenge about Roe v. Wade itself in their arguments, which gave an opening for a broader ruling. > The SCOTUS did that. As noted in Roberts' concurring opinion (which was still one of the 4 votes against), this specific case could have been solved without tearing down the RvW ruling. The parties opened the door: https://www.nytimes.com/live/2021/12/01/us/abortion-mississippi-supreme-court https://www.nytimes.com/live/2021/12/01/us/abortion-mississi...: > In the [Mississippi’s] petition seeking Supreme Court review, officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though lawyers for the state did raise the possibility in a footnote. Once the court agreed to hear the case, the state shifted its emphasis and began a sustained assault on those precedents. It's true the court could have rejected that and went narrower (Robert's preference), but it appears to not be true that "the court wasn't even being asked to overturn Roe v Wade" -- it was during oral arguments.
- falcolas 4y ago
  > You can't retain something you don't have. One SCOTUS said you do have it. One says you don't. Who's right? Not that it matters. Like I said, it's on Congress now. > footnote And the decision was still with the SCOTUS, footnote or no footnote. Regardless of what the lawyers say, it's ultimately up to the judges to determine what's an appropriate response to their arguments. If every footnote begging for an overturning of precedent was taken to this extreme, we would see a lot more turnover. This sweeping and disruptive change is solely on the SCOTUS' heads.