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That's all correct. There's no precedent for the court using using the "privileges or immunities" clause as a rationale for jurisdiction, and Roe was decided on

That's all correct. There's no precedent for the court using using the "privileges or immunities" clause as a rationale for jurisdiction, and Roe was decided on the due process clause. The privileges or immunities clause is indeed poorly written, and subject to lots of debate. I should have quoted at least up to the due process clause, but omitted it for space. However, I still think there's a strong case that the due process provides jurisdiction for the court to "check" a state over abortion for the due process clause, and possibly the "privileges or immunities clause", though that's, as you pointed out, untested territory. Post-Griswold, the due process clause applies to unenumerated rights in the constitution. Privacy, or even bodily autonomy, could easily be one of those rights. Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty. It wouldn't stand a chance with the current court, but I could see it flying on a modern court with a different makeup. After all, Corfield v. Coryell decided that New Jersey could prevent nonresidents from gathering clams. I can't see such state discriminatory laws passing muster post civil war.

SllX 4y ago
> Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty. The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.[1] The context of the 14th amendment was that post-emancipation there were millions of freedmen who under the laws of the United States up until that point were of questionable legal status regarding citizenship and rights under the Constitution or the State they resided in. The 14th amendment was intended to try and settle that without leaving it to the Courts. I mean, you can read up on the history of the Jim Crow era to see how well that went specifically, but arguably even that could have been far worse without the 14th Amendment serving as something of a bulwark for freedmen. So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause? EDIT:[1] After posting I decided to dig this out, but I think a lot of people who quote the wonders of the mysteries of the 14th amendment’s due process and privilege or immunities clause forget this part, but there is a Section 5 and it reads as follows: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This is not a delegation of power to the Courts. To the extent the Courts have additional power under the 14th, it is because Congress has additional powers to make new laws beyond the scope of Article I. When Congress’s power to pass laws is expanded, the Executive has the ability to enforce those laws and the Courts to adjudicate and pass judgement under those expanded laws. Congress is the supreme federal branch, and the powers of the Executive and Judiciary are downstream from there.
- StewardMcOy 4y ago
  > The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for. Right, correct. However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. That's not true, the Court can enforce the due process clause even when there's no explicit federal law or enumerated right. If this were not the case, Loving v. Virginia could not have been decided. The court ruled that the state law had violated both the equal protection and the due process clauses. Congress hadn't passed a law mandating that states allow interracial marriage, and it wasn't explicitly enumerated in the constitution. The court ruled that 1. Marriage is a fundamental constitutional right 2. States depriving people of that right was unconstitutional There's nothing stopping the court from using those exact same clauses to rule 1. Abortion prior to viability is a fundamental constitutional right 2. States depriving people of that right was unconstitutional Of course, you could go all Andrew Jackson on it and say that the court has overstepped its bounds (though I'd disagree), but the court ultimately won. Given how vague a lot of the language we're talking about here is, history has shown repeatedly the court can essentially interpret it as strictly or as loosely as they want, as long as they can convince the rest of the country to go along with it. > So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause? Like I said, I don't think I should look to the privileges or immunities clause first, but I could definitely envision a much broader interpretation of what "privileges or immunities" are to cover any fundamental human right. > “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Because this doesn't say "exclusive power", it the court has leeway to interpret itself into a role here. It may have been intended to be an exclusive power, but the court is very big on plain language.
  - SllX 4y ago
    > However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. Actually no. I think there are unenumerated rights: marriage, procreation, inheritance, paternal and maternal rights, and countless others. Abortion is not one of them unless you are also arguing against the paternal interest of the Father and the life interest of fetus (mind I’m not going to say that begins at birth, I actually don’t have a strong position on that specific question at this time). That’s what makes it no longer simply a matter of privacy, or bodily autonomy or whatever substantive due process claim you could make; another human being is implicated. That doesn’t mean we shouldn’t pass any legislation at all legalizing abortion to a point, but we have to make a political determination where that point is, and that will vary State to State, and it has to be legislation, not the Courts. That said I’ll give you this, if the courts want to step in at some point and protect the right to abortion in the cases of ectopic pregnancies, I’m all for it. I just hope they never have to.

SllX 4y ago

> Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty. The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.[1] The context of the 14th amendment was that post-emancipation there were millions of freedmen who under the laws of the United States up until that point were of questionable legal status regarding citizenship and rights under the Constitution or the State they resided in. The 14th amendment was intended to try and settle that without leaving it to the Courts. I mean, you can read up on the history of the Jim Crow era to see how well that went specifically, but arguably even that could have been far worse without the 14th Amendment serving as something of a bulwark for freedmen. So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause? EDIT:[1] After posting I decided to dig this out, but I think a lot of people who quote the wonders of the mysteries of the 14th amendment’s due process and privilege or immunities clause forget this part, but there is a Section 5 and it reads as follows: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This is not a delegation of power to the Courts. To the extent the Courts have additional power under the 14th, it is because Congress has additional powers to make new laws beyond the scope of Article I. When Congress’s power to pass laws is expanded, the Executive has the ability to enforce those laws and the Courts to adjudicate and pass judgement under those expanded laws. Congress is the supreme federal branch, and the powers of the Executive and Judiciary are downstream from there.

StewardMcOy 4y ago
> The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for. Right, correct. However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. That's not true, the Court can enforce the due process clause even when there's no explicit federal law or enumerated right. If this were not the case, Loving v. Virginia could not have been decided. The court ruled that the state law had violated both the equal protection and the due process clauses. Congress hadn't passed a law mandating that states allow interracial marriage, and it wasn't explicitly enumerated in the constitution. The court ruled that 1. Marriage is a fundamental constitutional right 2. States depriving people of that right was unconstitutional There's nothing stopping the court from using those exact same clauses to rule 1. Abortion prior to viability is a fundamental constitutional right 2. States depriving people of that right was unconstitutional Of course, you could go all Andrew Jackson on it and say that the court has overstepped its bounds (though I'd disagree), but the court ultimately won. Given how vague a lot of the language we're talking about here is, history has shown repeatedly the court can essentially interpret it as strictly or as loosely as they want, as long as they can convince the rest of the country to go along with it. > So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause? Like I said, I don't think I should look to the privileges or immunities clause first, but I could definitely envision a much broader interpretation of what "privileges or immunities" are to cover any fundamental human right. > “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Because this doesn't say "exclusive power", it the court has leeway to interpret itself into a role here. It may have been intended to be an exclusive power, but the court is very big on plain language.
- SllX 4y ago
  > However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. Actually no. I think there are unenumerated rights: marriage, procreation, inheritance, paternal and maternal rights, and countless others. Abortion is not one of them unless you are also arguing against the paternal interest of the Father and the life interest of fetus (mind I’m not going to say that begins at birth, I actually don’t have a strong position on that specific question at this time). That’s what makes it no longer simply a matter of privacy, or bodily autonomy or whatever substantive due process claim you could make; another human being is implicated. That doesn’t mean we shouldn’t pass any legislation at all legalizing abortion to a point, but we have to make a political determination where that point is, and that will vary State to State, and it has to be legislation, not the Courts. That said I’ll give you this, if the courts want to step in at some point and protect the right to abortion in the cases of ectopic pregnancies, I’m all for it. I just hope they never have to.